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

Kesler DALMACY, Appellant, v. Yanick JOSEPH, Respondent.  (Action No. 1)

Kesler Dalmacy, Appellant, v. Yanick Joseph, Respondent.  (Action No. 2)

Decided: August 19, 2002

ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, GABRIEL M. KRAUSMAN and STEPHEN G. CRANE, JJ. Siegel & Siegel, P.C., New York, N.Y. (Michael D. Siegel of counsel), for appellant. Sussman & Sussman, Mineola, N.Y. (Amy R. Sussman of counsel), for respondent.

In two related actions for partition of real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated October 5, 2001, which denied his motion for summary judgment and granted the defendant's cross motion for leave to amend her answers.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the matters are remitted to the Supreme Court, Nassau County, for the appointment of a referee pursuant to RPAPL 913.

 The plaintiff established his entitlement to a partition of the subject property by submitting a copy of the deed to that property indicating that he was a tenant in common with the defendant and that he owned a 75% interest in it.   The parties were never married to each other but have a daughter together.   Contrary to the Supreme Court's conclusion, there are no issues of fact regarding the plaintiff's right to possession of the property, which is all that he needed to maintain the present partition action (see RPAPL 901[1];  DeRisi v. Santoro, 262 A.D.2d 270, 691 N.Y.S.2d 111;  Piccirillo v. Friedman, 244 A.D.2d 469, 664 N.Y.S.2d 104;  Ripp v. Ripp, 38 A.D.2d 65, 327 N.Y.S.2d 465;  affd. 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114).   The defendant's claim that there was an oral agreement at the time of the purchase of the subject property that she would be allowed to remain in the house until the parties' daughter graduated college, is barred by the statute of frauds (see General Obligations Law § 5-701;  § 5-703;  Goldberg v. Goldberg, 173 A.D.2d 679, 570 N.Y.S.2d 333).   The defendant's claim of part performance is insufficient to take the oral contract out of the statute of frauds because the alleged partial performance does not unequivocally refer to the alleged oral contract (see Vesta Indus. v. Auto Am. of N.J., 280 A.D.2d 666, 721 N.Y.S.2d 247).

Further, because the defendant sought to amend her answers to assert counterclaims alleging fraud based upon the alleged oral agreement, the Supreme Court erred in granting the cross motion to add patently meritless counterclaims (cf.  USA Nutritionals v. Pharmalife, Inc., 293 A.D.2d 526, 740 N.Y.S.2d 133).

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