You are here: / / QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE...

QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE.

In an action for partition and sale of a four-family brownstone, the Second Department determined Supreme Court properly determined there was a question of fact whether physical partition or sale was the appropriate remedy:

“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 right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties” … . “The actual physical partition of property is the preferred method and is presumed appropriate unless one party demonstrates that actual physical partition would cause great prejudice, in which case the property must be sold at public auction” … .

Contrary to the plaintiffs’ contention, there is a question of fact as to whether physical partition or sale of the subject property is appropriate … . Thus, the Supreme Court properly denied that branch of the plaintiffs’ motion which sought a sale of the property, and properly appointed a referee to determine whether physical partition or sale was the appropriate remedy. Perretta v Perretta, 2016 NY Slip Op 06814, 2nd Dept 10-19-16

 

REAL PROPERTY (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)/PARTITION (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)/PHYSICAL PARTITION (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)

You might also like
Basic Criteria Re: Common-Law and Contractual Indemnification Explained
DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT).
THE WILL BEQUEATHED THE REAL PROPERTY TO PLAINTIFF ALONE; THE DEFENDANT ADMINSTRATOR DREW UP A DEED WHICH TRANSFERRED THE PROPERTY TO PLAINTIFF AND DEFENDANT AS JOINT TENANTS; THE ISSUE WAS WHETHER THE DEED IS VOID AB INITIO OR VOIDABLE; THE SECOND DEPARTMENT DETERMINED THE DEED WAS VOIDABLE (SECOND DEPT).
HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).
DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).
Judge’s Mistrial Order Precluded Retrial—Double Jeopardy
ONLY THE HUSBAND TOOK OUT A MORTGAGE AND DEFENDANTS DENIED THE ALLEGATION IN THE COMPLAINT THAT THE WIFE’S INTEREST WAS SUBJECT TO AN EQUITABLE MORTGAGE; THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE COURT NOTED THAT “NEITHER ADMITTED NOR DENIED” IN AN ANSWER TO A COMPLAINT IS DEEMED AN ADMISSION (SECOND DEPT).
A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR... ZONING BOARD DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE DURATIONAL LIMIT ON...