Galitskaya v. Presman

92 A.D.3d 637, 937 N.Y.2d 878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2012
• Status: Published

Opinion

“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 plaintiff made a prima facie showing of her entitlement to judgment as a matter of law (see Cadle Co. v Calcador, 85 AD3d 700, 702 [2011]; Arata v Behling, 57 AD3d 925, 926 [2008]; James v James, 52 AD3d 474 [2008]). The plaintiff demonstrated her ownership and the right to possession of the subject cooperative apartment through, inter alia, a stock certificate issued in the names of her and the defendant. In addition, the plaintiff demonstrated that the equities are in her favor (see Donlon v Diamico, 33 AD3d 841, 842 [2006]; Ripp v Ripp, 38 AD2d 65, 68-69 [1971], affd 32 NY2d 755 [1973]). The plaintiff farther established, prima facie, that a partition of the property cannot be made without great prejudice to the owners (see Cadle Co. v Calcador, 85 AD3d at 702; Donlon v Diamico, 33 AD3d at 842). In opposition, the defendant failed to raise a triable issue of fact (see Cadle Co. v Calcador, 85 AD3d at 703; Arata v Behling, 57 AD3d at 926; Donlon v Diamico, 33 AD3d at 842). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint. Florio, J.E, Chambers, Hall and Miller, JJ., concur.