McNally v. McNally

• Decision Date: 20 April 1987
• Citation: 514 N.Y.S.2d 449,129 A.D.2d 686
• Parties: Elaine G. McNALLY, etc., Respondent, v. Violet M. McNALLY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 449

514 N.Y.S.2d 449

129 A.D.2d 686

Elaine G. McNALLY, etc., Respondent, v. Violet M. McNALLY, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 20, 1987.

Daniels & Daniels, Garden City (Deirdre A. Nicolle, of counsel), for appellant.

Robert J. Shields, Mineola, for respondent.

Before MANGANO, J.P., and BRACKEN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action for the partition of real property, the defendant appeals from an interlocutory judgment of the Supreme Court, Nassau County (Robbins, J.), dated June 11, 1986, which, upon denying her motion for summary judgment and, upon granting the plaintiff's cross motion for summary judgment and the appointment of a referee to fix the parties' rights in the property, was in favor of the plaintiff.

ORDERED that the interlocutory judgment is reversed, on the law, without costs or disbursements, the defendant's motion for summary judgment is granted, the cross motion is denied, and the complaint is dismissed.

The defendant and the plaintiff's decedent Leonard F. McNally were married in 1947. In 1961, certain real property located in Old Bethpage, New York, was conveyed to them as tenants by the entirety. They were divorced in 1970. Mr. McNally died in 1972. This is an action brought by the executrix of Mr. McNally's estate for the partition of the property located in Old Bethpage, where the defendant, the decedent's ex-wife, has resided continuously since 1961. Special Term granted summary judgment in favor of the plaintiff. We reverse.

The judgment of divorce entered in 1970 terminated the tenancy by the entirety, and rendered the defendant and the plaintiff's decedent tenants in common (see, Matter of Violi, 65 N.Y.2d 392, 395, 492 N.Y.S.2d 550, 482 N.E.2d 29; Kahn v. Kahn, 43 N.Y.2d 203, 207, 401 N.Y.S.2d 47, 371 N.E.2d 809; Stelz v. Shreck, 128 N.Y. 263, 267, 28 N.E. 510). Under the general rule, therefore, the plaintiff's decedent, and hence his estate, would be entitled to seek a partition of the property pursuant to RPAPL 901(1) (see, Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Ripp v. Ripp, 38 A.D.2d 65, 67, 327 N.Y.S.2d 465, affd. 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114; Luvera v. Luvera, 119 A.D.2d 810, 811, 501 N.Y.S.2d 438; Gasko v. Del Ventura, 96 A.D.2d 896, 466 N.Y.S.2d 64).

However, the general rule yields, in this case, to the well-recognized exception that equity will not award partition to a party in violation of his own agreement (Chew v. Sheldon, 214 N.Y. 344, 108 N.E. 552; Altman v. Altman, 271 App.Div. 884, 67 N.Y.S.2d 119, affd. 297 N.Y. 973, 80 N.E.2d 359). Put somewhat differently, an agreement not to partition is a valid defense to an action for partition (see, Ogilby v. Hickok, 144 App.Div. 61, 128 N.Y.S. 860, affd. 202 N.Y. 614, 96 N.E. 1123; Smith v. Smith, 214 App.Div. 383, 212 N.Y.S. 196; see also, 14 Carmody-Waite 2d, N.Y.Prac. 91:91, pp 384-385; 68 C.J.S., Partition § 44).

In the case under review, the plaintiff's decedent executed a separation agreement with the defendant in 1965 in which it was stipulated that the defendant would have the contractual right to exclusively occupy the subject premises. The defendant, for her part, promised to pay the mortgage and insurance payments, as well as the taxes relating to the subject premises. Absolutely no limitation was placed on the defendant's right to occupy the subject residence, and no such limitation is reasonably inferable from the terms of the agreement. Thus, the plaintiff's decedent in effect agreed to refrain from exercising his right to partition for the duration of the defendant's life (provided, of course, that she remain in occupancy of the premises and paid the mortgage, insurance premiums and taxes) (see, Ripp v. Ripp, supra; Petty v. Petty, 79 A.D.2d 679, 680, 433 N.Y.S.2d 867, appeal denied 53 N.Y.2d 605, 439 N.Y.S.2d 1028, 422 N.E.2d 584; Orologio v. Orologio, 82 Misc.2d 1022, 1024, 372 N.Y.S.2d 15).

The plaintiff argues that such an agreement not to seek partition for the...