Opinion
June 6, 1988
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, without costs or disbursements.
The defendant Juanita Holt and her husband, the defendant James T. Holt, were tenants by the entirety of the marital residence located in Jamaica, Queens. In 1969, the plaintiff obtained a money judgment solely against James Holt in the sum of $394.90, eventually levied on his interest in the property and, in 1977, conducted an execution sale. The plaintiff was the highest bidder and received a Sheriff's deed purportedly conveying to her James Holt's interest in the property. Juanita and James Holt were granted a judgment of divorce in or about January 1983, and Juanita Holt was awarded "exclusive occupancy of the marital residence" for an indefinite period of time.
When the Holts were granted a judgment of divorce, the tenancy by the entirety by which they held title to the marital premises was converted by operation of law to a tenancy in common, and a partition action would ordinarily lie (see, Stelz v Shreck, 128 N.Y. 263; Yax v Yax, 240 N.Y. 590). However, since Juanita Holt was awarded exclusive occupancy, James Holt had no standing to commence a partition action under RPAPL 901 (1) (see, Davies v Davies, 65 Misc.2d 480), unless and until Juanita Holt's right to exclusive occupancy is extinguished (see, Givens v Givens, 138 A.D.2d 348; Ripp v Ripp, 38 A.D.2d 65, affd 32 N.Y.2d 755). The plaintiff, having purchased James Holt's interest at a Sheriff's sale, albeit before the divorce, can have no rights greater than those enjoyed by James Holt (cf., V.R.W., Inc. v Klein, 68 N.Y.2d 560) and therefore cannot maintain a partition proceeding in the face of Juanita Holt's award of exclusive occupancy (see, Bank of N.Y. v Stauble, 84 A.D.2d 530). Although the plaintiff did not have notice of the divorce proceedings, she is nevertheless bound by the provisions granting Juanita Holt exclusive occupancy (see, Solomon v Barth, 135 Misc.2d 574). Kunzeman, J.P., Kooper, Sullivan and Balletta, JJ., concur.