Gasko v. Del Ventura

• Decision Date: 22 August 1983
• Citation: 466 N.Y.S.2d 64,96 A.D.2d 896
• Parties: John GASKO, Appellant, v. Rose DEL VENTURA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 64

466 N.Y.S.2d 64

96 A.D.2d 896

John GASKO, Appellant, v. Rose DEL VENTURA, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 22, 1983.

Robert G. Schneider, New Rochelle, for appellant.

Allen, Litt, Hulnick & Giordano, Tarrytown (Arthur A. Litt, Tarrytown, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action for partition, plaintiff appeals from an order of the Supreme Court, Westchester County, dated January 13, 1983, which denied his motion for summary judgment.

Order affirmed, with costs.

Although a divorce converts a tenancy by the entirety to a tenancy in common (Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510) the ex-husband's right to maintain an action for partition is subject to equitable considerations as between husband and wife (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 on the opn of HOPKINS, J.). Plaintiff, as judgment creditor of the ex-husband, and as recipient of a Sheriff's deed conveying the ex-husband's interest in the property to him, had no rights greater than that of the ex-husband, "in whose shoes plaintiff stood" (see Bank of New York v. Stauble, 84 A.D.2d 530, 531, 443 N.Y.S.2d 88). Since there are issues of fact as to the extent of such equities, summary judgment was properly denied.

MOLLEN, P.J., and WEINSTEIN and RUBIN, JJ., concur.

TITONE, Justice, dissents and votes to reverse the order and grant the motion for summary judgment, with the following memorandum:

While I am sympathetic to the plight of the defendant, my review of the record discloses no valid defense to this partition action (cf. Guardian Loan Co. v. Early, 47 N.Y.2d 515, 419 N.Y.S.2d 56, 392 N.E.2d 1240). I, therefore, dissent and vote to reverse.

It is axiomatic that, at the time of the divorce, the real property owned by the defendant and her ex-husband was converted from a tenancy by the entirety to a tenancy in common (Stelz v. Shreck, 128 N.Y. 263, 269, 28 N.E. 510; Bank of New York v. Stauble, 84 A.D.2d 530, 443 N.Y.S.2d 88) and each was thereafter capable of bringing a partition action against the other (Yax v. Yax, 240 N.Y. 590, 148 N.E. 717). As a judgment creditor, plaintiff stands in the shoes of the ex-husband (Bank of New York v. Stauble, supra ).

True, where a wife is granted exclusive possession of the marital premises, a judgment creditor may not maintain a partition action as he is not "in possession of real property" within the meaning of subdivision 1 of RPAPL 901 (see Ripp v. Ripp, 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114, affg. 38 A.D.2d 65, 327 N.Y.S.2d 465; Bank of New York v. Stauble, supra ). Absent such a provision or its waiver or its termination, however, "partition of the property would not interfere with any judicially created right of occupancy, or compromise the integrity of the judgment of divorce" and may be directed (Schechter v. Schechter, 73 A.D.2d 614, 615, 422 N.Y.S.2d 133; see Brightenback v. Brightenback, 84 A.D.2d 556, 443 N.Y.S.2d 418; Gajewski v. Gajewski, 52 A.D.2d 735, 736, 382 N.Y.S.2d 177).

Defendant has tendered no proof that the divorce decree contains a provision granting her exclusive possession. This is a significant omission for plaintiff is statutorily precluded from obtaining a copy (Domestic Relations Law, § 235; see Mason v. Cohn, 108 Misc.2d 674, 676, 438 N.Y.S.2d 462) and the right of exclusive possession would appear to be a defense to be established by the defendant (cf. Brightenback v. Brightenback, supra ). On a motion for summary judgment, it thus must be assumed that the decree does not so provide (see Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Plaintiff, in his moving papers, has met the statutory requirements necessary to compel a partition (Rosen v. Rosen, 78 A.D.2d 911, 912, 432 N.Y.S.2d 921). "It is well settled, both at common law as well as by statute, that in the absence of an agreement against * * * partition, partition among * * * tenants in common is a matter of right, where they do not desire to hold and use the property in common. Partition is a matter of right, however inconvenient or injurious it may be" (3 Rasch, Real Property Law and Practice, § 2113, p. 1627; see, also, Chew v. Sheldon, 214 N.Y. 344, 348, 108 N.E. 552; 14 Carmody-Wait 2d, N.Y.Prac., § 91:3). Defendant's claims relating to her ex-husband's alleged...