Bastians v. Bastians

36 A.D.2d 1020, 321 N.Y.S.2d 480, 1971 N.Y. App. Div. LEXIS 4029

Opinion

Memorandum: The parties own residence property as tenants by the entirety. In this action plaintiff sues for divorce and defendant counterclaims for divorce. Defendant also prays that in the event a judgment of divorce is granted to either party, a further judgment for partition of said real estate be granted. Plaintiff appeals from the order denying his motion to dismiss the counterclaim for partition. Although a tenancy by the entirety cannot be made the subject of an action for partition (Anello v. Anello, 22 A D 2d 694; 14 Carmody-Wait 2d, New York Practice, Partition, § 91:12), defendant’s counterclaim is drafted contingent upon the dissolution of the marriage, in which case ownership of this property will be held by these parties as tenants in common and partition will then lie (Stelz v. Shreck, 128 N. Y. 263; Hosford v. Hosford, 273 App. Div. 659). The order was, therefore, properly made (Perles v. Perles, 27 N Y 2d 832). (Appeal from order of Monroe Special Term denying motion to dismiss counterclaim in divorce action.) Present — Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Cardamone, JJ.