Grossman v. Baker

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court was correct in denying defendant’s summary judgment motion seeking an interlocutory judgment of partition and sale. Although the right to partition is governed by statute (RPAPL 901 et seq.), and is absolute in the absence of countervailing conditions (Chew v Sheldon, 214 NY 344; Wood v Fleet, 36 NY 499; see generally, 24 NY Jur 2d, Cotenancy and Partition, § 131), such issues as the interests of the parties and whether partition may be had without great prejudice should first be determined (Mary George, DM.D. & Ralph Epstein, D.D.S., P. C. v J. William Bridbord, D.D.S., P. C., 113 AD2d 869). Here, because of the commingling of income and expenses of the family properties and the unique ownership arrangement in those properties, there are important financial questions to be resolved that require an accounting. An accounting is a "necessary incident” of a partition action (Worthing v Cossar, 93 AD2d 515, 517), and may be had as a matter of right before entry of an interlocutory or final judgment to ensure that the parties’ rights are fixed in such manner that a decree "may work full and complete justice between [them]” (Grody v Silverman, 222 App Div 526, 530; see also, McVicker v Sarma, 163 AD2d 721; Giglio v Giglio, 46 AD2d 921). Supreme Court should have granted plaintiffs’ motion to dismiss defendant’s affirmative defenses asserting unclean hands and estoppel. Although partition is subject to the equities between the parties (Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755), those defenses are not available in a partition action (Jones v Gabrielli, 6 AD2d 542; Jurdak v Figueroa, 34 Misc 2d 4; see also, Socoloff v Socoloff, 14 Misc 2d 604). We therefore modify to dismiss defendant’s second and third affirmative defenses. (Appeal from Order of Supreme Court, Monroe County, Willis, J. — Summary Judgment.) Present— Denman, P. J., Green, Balio, Boehm and Fallon, JJ.