Luvera v. Luvera
| Decision Date | 28 April 1986 |
| Citation | 119 A.D.2d 810,501 N.Y.S.2d 438 |
| Parties | Susan LUVERA, etc., et al., Appellants, v. Paula LUVERA, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Dennis DeAngelis, Mineola, for appellants.
Michael M. Premisler, Carle Place, for respondents.
Before MOLLEN, P.J., and THOMPSON, NIEHOFF, RUBIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In an action for the partition of real property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated September 4, 1984, as granted the defendants' motion for reargument, and, upon reargument, vacated a prior order of the same court dated May 24, 1984, granted the defendants' motion for summary judgment dismissing the complaint, and denied the plaintiffs' cross motion for summary judgment.
Order modified, by deleting the provision thereof which granted the defendants' motion for summary judgment dismissing the complaint and substituting therefor a provision denying that motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The defendant Paula Luvera was married to William Luvera on January 30, 1963 in Nassau County. Two issue were born of their marriage: the defendants Michael and Cindy Luvera. On September 29, 1965, William and Paula Luvera purchased, as tenants by the entirety, the premises known as 76 State Lane, Levittown, New York.
On May 25, 1970, Paula and William Luvera executed a separation agreement which, by its terms, granted Paula Luvera exclusive use and occupancy of the marital premises "until such time as same shall be sold". On August 11, 1970, Paula Luvera obtained a final judgment of divorce against William Luvera in Mexico. The parties' separation agreement was incorporated in, but not merged with, the judgment of divorce.
On September 3, 1970, William Luvera married the plaintiff Susan Luvera. Three issue were born of this marriage: the plaintiffs William, Paul and Thomas Luvera. Before the birth of the couple's third child, the elder William Luvera died intestate on February 22, 1977.
The plaintiffs, Susan Luvera and her infant children, subsequently instituted the instant action against the defendants seeking to partition and sell the Levittown property. Following service of their answer, the defendants moved for summary judgment dismissing the complaint for lack of standing. The plaintiffs also cross-moved for summary judgment.
Special Term, by order dated May 24, 1984, originally denied the defendants' motion, granted the plaintiffs' cross motion, and directed the sale of the demised premises. Upon the defendants' motion for reargument, however, Special Term vacated its prior order, denied the plaintiffs' cross-motion and granted the defendants' motion for summary judgment dismissing the complaint for lack of standing. We now modify by denying the defendants' motion.
It is axiomatic that once a tenancy by the entirety is converted into a tenancy in common upon the divorce of the parties, an action for partition may, in most instances, be brought by either party under RPAPL 901(1) (see, Stelz v. Shreck, 128 N.Y. 263, 269, 28 N.E. 510; Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Bank of New York v. Stauble, 84 A.D.2d 530, 443 N.Y.S.2d 88). That subdivision provides, inter alia, that "[a] person holding and in possession of real property as joint tenant or tenant in common * * * may maintain an action for the partition of the property". A tenant in common may be in either actual or constructive possession of the premises in order to seek partition thereof, provided that the tenant has a present right of possession (see, 3A Warren's Weed, NY Real Prop, Partition, § 4.02). Thus, where a divorce decree awards exclusive use...
To continue reading
Request your trial
-
Pando v. Tapia
...( see Ramsey v. Ramsey, 69 A.D.3d 829, 831, 894 N.Y.S.2d 73; Duffy v. Duffy, 21 A.D.3d 928, 929, 801 N.Y.S.2d 607; Luvera v. Luvera, 119 A.D.2d 810, 810-811, 501 N.Y.S.2d 438). Pursuant to Real Property Actions and Proceedings Law § 901(1), a tenant in common may maintain an action for the ......
-
Bufogle v. Greek
...thereof unless it appears that physical partition alone would greatly prejudice the owners of the premises (see, RPAPL 901[1], Luvera v. Luvera, 119 A.D.2d 810, 501 N.Y.S.2d 438; Andriano v. Caronia, 117 A.D.2d 640, 498 N.Y.S.2d 382; Rokeach v. Zaltz, 112 A.D.2d 209, 491 N.Y.S.2d 428). Whil......
-
Wilbur v. Wilbur
...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......
-
Wawrzusin v. Wawrzusin
...333). Moreover, although a counterclaim for arrears may be asserted by a former spouse in a partition proceeding (see, Luvera v. Luvera, 119 A.D.2d 810, 501 N.Y.S.2d 438; Maisto v. Maisto, 75 A.D.2d 886, 428 N.Y.S.2d 43), upon review of the record we agree with the Supreme Court's finding t......