Enya Galitskaya, appellant, v. Anatoliy Presman, etc., respondent.

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

Enya Galitskaya, appellant, v. Anatoliy Presman, etc., respondent.

2011–05246 (Index No. 23461/08)

Decided: February 07, 2012

ANITA R. FLORIO, J.P. CHERYL E. CHAMBERS L. PRISCILLA HALL ROBERT J. MILLER, JJ. Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant. Natalia Skvortsova, PLLC, Brooklyn, N.Y., for respondent.

Argued—January 12, 2012

DECISION & ORDER

In an action pursuant to RPAPL article 9, inter alia, for the partition and sale of a cooperative apartment, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated April 15, 2011, as denied her motion for summary judgment on the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Kings County, to, inter alia, declare the rights, shares, and interests of the parties in the subject premises, by a reference or otherwise, and thereafter for entry of an appropriate judgment.

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners” (RPAPL 901[1] ).

The plaintiff made a prima facie showing of her entitlement to judgment as a matter of law (see Cadle Co. v. Calcador, 85 AD3d 700, 702;  Arata v. Behling, 57 AD3d 925, 926;  James v. James, 52 AD3d 474).   The plaintiff demonstrated her ownership and the right to possession of the subject cooperative apartment through, inter alia, a stock certificate issued in the names of her and the defendant.   In addition, the plaintiff demonstrated that the equities are in her favor (see Donlon v. Diamico, 33 AD3d 841, 842;  Ripp v. Ripp, 38 A.D.2d 65, 68–69, affd 37 N.Y.2d 755).   The plaintiff further established, prima facie, that a partition of the property cannot be made without great prejudice to the owners (see Cadle Co. v. Calcador, 85 AD3d at 702;  Donlon v. Diamico, 33 AD3d at 842).   In opposition, the defendant failed to raise a triable issue of fact (see Cadle Co. v. Calcador, 85 AD3d at 703;  Arata v. Behling, 57 AD3d at 926;  Donlon v. Diamico, 33 AD3d at 842).   Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint.

FLORIO, J.P., CHAMBERS, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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