Equity Search, Inc. v. Kao

Appeal from an order of the Supreme Court, Livingston County (Gerard J. Alonzo, Jr., A.J.), entered November 4, 2005 in an action pursuant to RPAPL article 9. The order granted in part defendant’s motion for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that, although partition actions are governed by RPAPL article 9, such actions also are “equitable in nature” (Worthing v Cossar, 93 AD2d 515, 517 [1983]; [1106] see McVicker v Sarma, 163 AD2d 721, 722 [1990]). “It is axiomatic that in an action for partition the court may adjust the equities of the parties in determining the distribution of the sale proceeds” (McVieker, 163 AD2d at 722), and we conclude that the court properly did so here. Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Peradotto, JJ.