WILBUR v. WILBUR

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

Elizabeth WILBUR, appellant, v. Patricia WILBUR, respondent.

Decided: November 29, 1999

WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and GLORIA GOLDSTEIN, JJ. Enedina Pilar Sanchez, Astoria, N.Y., for appellant. O'Brien, McLaughlin & Kenny, Lynbrook, N.Y. (Robert P. O'Brien of counsel), for respondent.

In an action for the partition and sale of real property, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), dated April 1, 1998, as denied her motion for summary judgment.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and plaintiff's motion is granted.

The plaintiff, the sister of the defendant, commenced the instant action for the partition and sale of certain real property.   The defendant received an undivided one-half interest in the property from their mother under the terms of the mother's will.   In support of her motion for summary judgment, the plaintiff submitted the original 1968 deed to the property, which clearly established that she and the parties' mother had been tenants-in-common, and it is undisputed that there have been no alterations to the deed since the original purchase of the property.   The court denied the motion for summary judgment, and we reverse.

 It is well settled that a tenant-in-common of real property may maintain an action for the partition and for the sale of the property, if it appears that partition alone cannot be made without great prejudice to the owners (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;  Bufogle v. Greek, 152 A.D.2d 527, 543 N.Y.S.2d 152;  Luvera v. Luvera, 119 A.D.2d 810, 501 N.Y.S.2d 438).   Where, as here, the moving party has established entitlement to summary judgment as a matter of law, the party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action (see, LaCapria v. Bonazza, 153 A.D.2d 551, 552, 544 N.Y.S.2d 848, citing Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Evidence of hearsay statements cannot alone be used to defeat a motion for summary judgment (see, LaCapria v. Bonazza, supra, citing Zuckerman v. City of New York, supra;  see also, Callari v. Pellitieri, 130 A.D.2d 935, 936, 516 N.Y.S.2d 371).  “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (LaCapria v. Bonazza, supra;  Zuckerman v. City of New York, supra;  see also, Brock v. Brock, 256 A.D.2d 375, 681 N.Y.S.2d 559;   Mason v. Mason, 154 A.D.2d 515, 546 N.Y.S.2d 138;  Fanroth v. Falkner, 137 A.D.2d 581, 524 N.Y.S.2d 363).

 The defendant's deposition testimony that she was told by her mother that her mother considered herself to be the sole owner and that the mother always believed that the plaintiff would reconvey the interest in the subject property to her, constitutes unsubstantiated hearsay, which is belied by the documentary evidence.   Hence, no triable factual issues are presented as the defendant's deposition testimony is insufficient to defeat summary judgment with regard to her contention that the plaintiff is not entitled to partition (see, LaCapria v. Bonazza, 153 A.D.2d 551, 552, 544 N.Y.S.2d 848;  Mason v. Mason, 154 A.D.2d 515, 546 N.Y.S.2d 138;  Fanroth v. Falkner, 137 A.D.2d 581, 524 N.Y.S.2d 363;  see also, Van Lieu v. Pellegrini, 256 A.D.2d 573, 682 N.Y.S.2d 868).

MEMORANDUM BY THE COURT.

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