Lang v. Lang

270 A.D.2d 463, 705 N.Y.S.2d 295, 2000 N.Y. App. Div. LEXIS 3183

Opinion

—In an action for the partition of real property pursuant to RPAPL article 9, the defendants appeal from an interlocutory judgment of the Surrogate’s Court, Suffolk County (Prudenti, S.), entered December 14, 1998, which, after a nonjury trial, determined, inter alia, that the plaintiff possesses an equal undivided one-half interest in the subject property as tenant-in-common with the decedent’s estate and that the defendants are not entitled to an offset from the plaintiff for taxes and insurance premiums that the decedent paid on the property.

Ordered that the interlocutory judgment is affirmed, with costs.

The Surrogate properly determined that the defendants failed to rebut the presumption that the plaintiff held an equal undivided one-half interest in the subject premises as tenant-in-common with the decedent (cf., Moran v Thomas, 280 App Div 1037; Perrin v Harrington, 146 App Div 292). Moreover, the Surrogate’s determination that the decedent waived his right to seek contribution for the payment of taxes and insurance premiums in exchange for the plaintiff’s implied waiver of her right to occupy the premises after she moved out sometime in 1975 is amply supported by the record, and the defendants were not entitled to an offset therefor (see, Jemzura v Jemzura, 36 NY2d 496).

The defendants’ remaining contentions are without merit. Thompson, J. P., S. Miller, Florio and Schmidt, JJ., concur.