Nicklas v. Nicklas

138 A.D.2d 777, 525 N.Y.S.2d 398, 1988 N.Y. App. Div. LEXIS 2039

Opinion

Weiss, J.

Appeal from a judgment of the Supreme Court (Doran, J.), entered March 6, 1987 in Albany County, directing a distribution of the sale proceeds of the parties’ former marital residence upon a decision of the court, without a jury.

In this partition action, the parties stipulated to a sale of the property and, after a nonjury trial, Supreme Court directed an equal division of the net proceeds, with a credit to plaintiff of $14,889.89, representing one half her excess expenditures as a cotenant, less credit for rent received. The sole issue presented on this appeal concerns the formula utilized by the court in distributing the proceeds of sale. Plaintiff maintains that the court erred in ordering a deduction of the credit from the sale proceeds before dividing the net proceeds between the parties. Plaintiff contends that the appropriate formula is to adjust for the credit after the division of the net proceeds. The argument is well taken.

By virtue of Supreme Court’s directive, plaintiff would effectively receive a quarter of her approved expenses and not the 50% credit to which she is entitled. Accordingly, the judgment should be modified to direct an adjustment for the credit after the net proceeds are divided. In this manner, the credit will properly be charged against defendant’s share of the sale proceeds (see, Worthing v Cossar, 93 AD2d 515, 520; Doyle v Hamm, 52 AD2d 899).

Judgment modified, on the law, without costs, by providing for an adjustment of the credit after the net proceeds are equally divided, and, as so modified, affirmed. Kane, J. P., Weiss, Yesawich, Jr., arid Harvey, JJ., concur.