Ricky Wardally, et al.,
appellants,
v.
Tanya Wardally,
respondent.
Appellate Division of the Supreme Court of New York, Second Department.
186 AD3d 531
Aug 5, 2020
Wardally v Wardally
186 AD3d 531, 2020 N.Y. Slip Op. 4424
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action for the partition and sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated May 16, 2019. The order denied the plaintiffs' motion pursuant to RPAPL 911 for the appointment of a referee to ascertain and report the rights, shares, and interests of the parties in the subject property.
ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion for the appointment of a referee to ascertain and report the rights, shares, and interests of the parties in the subject property is granted, and the matter is remitted to the Supreme Court, Kings County, for the appointment of a referee pursuant to RPAPL 911 and 913.
The plaintiffs commenced this action for the partition and sale of certain real property which they owned as tenants-in-common with the defendant. The plaintiffs subsequently moved pursuant to RPAPL 911 for the appointment of a referee to ascertain and report the rights, shares, and interests of the parties in the subject property. The Supreme Court denied the motion. The plaintiffs appeal.
The plaintiffs are tenants-in-common with the defendant with respect to the subject property, and each party owns a one-third interest in the property. The defendant has not disputed the plaintiffs' ownership and possessory rights and, therefore, the plaintiffs are prima facie entitled to partition of the property (see Holley v. Hinson–Holley , 101 A.D.3d 1084, 1085, 956 N.Y.S.2d 513 ; Dalmacy v. Joseph , 297 A.D.2d 329, 330, 746 N.Y.S.2d 312 ). The defendant did not raise a triable issue of fact regarding the plaintiffs' right to possession of the subject property.
However, before a partition may be directed, a determination must be made as to the "rights, shares, or interests of the parties, and whether partition may be had without great prejudice" ( Lauriello v. Gallotta , 70 A.D.3d 1009, 1010, 895 N.Y.S.2d 495 ; see RPAPL 911, 915 ; Wolfe v. Wolfe , 187 A.D.2d 628, 629, 590 N.Y.S.2d 504 ; Grossman v. Baker , 182 A.D.2d 1119, 583 N.Y.S.2d 92 ; George v. Bridbord , 113 A.D.2d 869, 871, 493 N.Y.S.2d 794 ). Further, it must be determined whether there are any creditors with liens on the subject property (see RPAPL 913 ). Accordingly, we reverse the order appealed from, grant the plaintiffs' motion, and remit the matter to the Supreme Court, Kings County, to appoint a referee to determine the parties' respective interests in the subject property and to determine whether there are any creditors with liens on the property.
SCHEINKMAN, P.J., BALKIN, CHAMBERS and WOOTEN, JJ., concur.
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