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Supreme Court, Appellate Division, First Department, New York.

Ofer COHEN, Plaintiff-Respondent, v. Yaffa COHEN, etc., et al., Defendants-Appellants.

Decided: August 01, 2002

WILLIAMS, P.J., TOM, MAZZARELLI, ELLERIN and MARLOW, JJ. Morlan Ty Rogers, for Plaintiff-Respondent. Michael L. Steindam, Defendants-Appellants.

Order, Supreme Court, New York County (Carol Huff, J.), entered October 9, 2001, which, in an action for partition and sale of a cooperative apartment, insofar as appealed from, granted plaintiff's motion for summary judgment on the issue of defendant's liability for half of the apartment's fair market rental value calculated from the date of plaintiff's ouster from the apartment, unanimously modified, on the law and the facts, to reduce the award for the time period during which plaintiff was prohibited from entering the apartment pursuant to an order of protection, the matter remanded to establish the correlating fair market rental value for that time period, and otherwise affirmed, without costs.

 “It is well established that a tenant-in-common is liable for rent to [her] co-tenant if [she] occupies the property to the exclusion of that co-tenant.”  (H & Y Realty v. Baron, 160 A.D.2d 412, 414, 554 N.Y.S.2d 111.)   The record establishes that on May 7, 1994, defendant ousted plaintiff from the cooperative apartment that the two held as tenants-in-common following the death of plaintiff's brother and defendant's husband, with whom plaintiff had bought the apartment as a tenant-in-common.   There was no ouster, though, for which recovery may be had, during the time period of the order of protection that she obtained on May 11, 1994 for plaintiff's assaultive conduct on May 7, 1994, for which she also later obtained a money judgment, which legally precluded plaintiff's occupancy of the apartment.   We have considered defendant's argument that there is no evidence of ouster after expiration of the order of protection on July 7, 1995, by which time plaintiff had already asserted his claim for rent as a counterclaim in defendant's assault action, and reject the implication that plaintiff had to confirm the ouster with periodic attempts to enter the apartment.