Minas TSOUKAS, appellant,
v.
Konstantinos TSOUKAS, respondent.
Appellate Division of the Supreme Court of the State of New York, Second Department.
107 AD3d 879 (2013)
Tsoukas v Tsoukas
107 AD3d 879
REINALDO E. RIVERA
J. Papapanayotou, Long Island City, N.Y., for appellant. John Z. Marangos, Staten Island, N.Y., for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action for the partition and sale of real property, the plaintiff appeals from an order of the Supreme Court, Richmond County (Fusco, J.), dated April 10, 2012, which denied his motion, inter alia, for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
“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 ( see Pando v. Tapia, 79 A.D.3d 993, 995, 914 N.Y.S.2d 226;Arata v. Behling, 57 A.D.3d 925, 926, 870 N.Y.S.2d 450;James v. James, 52 A.D.3d 474, 474, 859 N.Y.S.2d 479;Graffeo v. Paciello, 46 A.D.3d 613, 614, 848 N.Y.S.2d 264).
Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting a copy of the duly-executed bargain and sale deed dated October 1, 2003, demonstrating his ownership and the right to possession of the subject property as a tenant in common with the defendant. In opposition, the defendant raised triable issues of fact as to whether the equities were in his favor ( see Arata v. Behling, 57 A.D.3d at 926, 870 N.Y.S.2d 450). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint.
The plaintiff's remaining contentions are without merit.
The case of Tsoukas v Tsoukas is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Tsoukas may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Tsoukas v Tsoukas is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.
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