Freigang v. Freigang

• Decision Date: 28 December 1998
• Citation: 682 N.Y.S.2d 466,256 AD2d 539
• Parties: 1998 N.Y. Slip Op. 11,522 Judith FREIGANG, Appellant, v. Edward R. FREIGANG, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 466

682 N.Y.S.2d 466

1998 N.Y. Slip Op. 11,522

Judith FREIGANG, Appellant, v. Edward R. FREIGANG, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 28, 1998.

Markotsis & Lieberman, Hicksville, N.Y. (Douglas M. Lieberman of counsel), for appellant.

John N. Prudenti, Mastic, N.Y., for respondent.

BRACKEN, J.P., RITTER, COPERTINO and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to partition real property, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated December 5, 1997, as granted the defendant's cross motion which was to modify the report of the Referee to the extent of directing reimbursement of the defendant for one-half of all payments made for mortgage, taxes, and insurance on the subject property from September 1975 to the date of sale from the plaintiff's share of the proceeds of the sale.

ORDERED that the order is affirmed insofar as appealed from, with costs.

As conceded by the parties, the parties' judgment of divorce converted their ownership of the marital home from that as tenants by the entirety to that as tenants in common, and either was entitled to seek partition (see, Eller v. Eller, 168 A.D.2d 414, 562 N.Y.S.2d 540; Surlak v. Fulfree, 145 A.D.2d 79; , 537 N.Y.S.2d 848 13 Warren's Weed, New York Real Property, Tenancy in Common, § 2.08[1] [4th ed] ). Partition, although statutory (RPAPL 9), is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of the sale (see, Oliva v. Oliva, 136 A.D.2d 611, 523 N.Y.S.2d 859; Worthing v. Cossar, 93 A.D.2d 515, 462 N.Y.S.2d 920). Here, on the facts presented, including, inter alia, the plaintiff's abandonment of the former marital home and her lack of contribution to any expenses concerning the home since 1975, the Supreme Court did not err in determining that the defendant was entitled to reimbursement for one-half of payments made for mortgage, taxes, and insurance since September of 1975 (see, Phelan v. Phelan, 243 A.D.2d 693, 663 N.Y.S.2d 645; Goldberg v. Goldberg, 173 A.D.2d 679, 570 N.Y.S.2d 333; Worthing v. Cossar, supra; Doyle v. Hamm, 52 A.D.2d 899, 383 N.Y.S.2d 373).

Contrary to the plaintiff's contentions, reimbursement should not have been denied based on either an "ouster" pursuant to an order dated September 16, 1975, or based on the defendant's exclusive use and occupancy of the property. A tenant in common "has the right to take and occupy the whole of the premises and preserve them from waste and injury, so long as he does not interfere with the right of a cotenant to also occupy the premises" (Oliva v. Oliva, supra, at 612, 523 N.Y.S.2d 859; see also, Gralicer v. Johnstone, 144 A.D.2d 436, 534 N.Y.S.2d 15). Thus, the mere fact that a tenant enjoys exclusive use of a property held in common, without more, does not either preclude reimbursement from a cotenant of expenditures concerning the property (see, e.g., Goldberg v. Goldberg, supra; Phelan v. Phelan, 148 A.D.2d 433, 538 N.Y.S.2d 827; Worthing v. Cossar, supra; Doyle v. Hamm, supra) or constitute an "ouster" of a cotenant (see, Gralicer v. Johnstone, supra; Oliva v. Oliva, supra), Here, the plaintiff does not, and cannot, dispute the finding that the defendant never acted in...