The interlocutory judgment appealed from directed the partition and sale of the subject property, and directed that, after payment to the defendant of the sum of $27,000, pursuant to the parties' written agreement, the remaining proceeds "shall be divided equally" without crediting the plaintiff for payments made in excess of his one-half interest in the property. Although statutory, a partition action is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale ( see Cook v Petito, 208 AD2d 886; Oliva v Oliva, 136 AD2d 611, 612). In determining the equities between the parties, agreements between the cotenants should be given effect ( see Oliva v Oliva, 136 AD2d 611).
Ordered that one bill of costs is awarded to the defendant. Although statutory, a partition action is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale ( see Berlin v Wojnarowski, 32 AD3d 810, 811; Cook v Petito, 208 AD2d 886; Oliva v Oliva, 136 AD2d 611, 612). Here, the Supreme Court properly determined the equities between the parties, and its determination to distribute the net proceeds of the sale of the subject real property between the parties in accordance with their ownership interest is supported by the record.
Ordered that the judgment is affirmed, with costs. "A partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" ( Cook v Petito, 208 AD2d 886; see Berlin v Wojnarowski, 32 AD3d 810, 811; Lemcke v Lemcke, 13 AD3d 1062; Oliva v Oliva, 136 AD2d 611, 612). In this case, the Supreme Court did not improvidently exercise its discretion in its distribution of the net proceeds of the sale of the subject real property between the parties in accordance with their ownership interest share ( id.; see Hunt v Hunt, 13 AD3d 1041, 1042, lv denied 8 NY3d 812).
The appellant and her former husband were not divorced until 1997 and the plaintiff commenced this partition action in 2001. "A partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" ( Cook v Petito, 208 AD2d 886 [citation and internal quotation marks omitted]). The plaintiff should be required to compensate the appellant for his equitable share of the mortgage and taxes on, and major repairs and improvements to, the subject premises, from March 9, 1971 to the date the property is sold.
Rather the Court may consider the equities of this case and make a just division of the proceeds. See Ripp v. Ripp , 38 AD2d 65 (2d Dept. 1971) ; See also Cook v. Petito , 208 AD2d 886 (2d Dept. 1994) ; Equity Search, Inc. v. Kao , 37 AD3d 1105 (4th Dept. 2007). Applying these principles to this case, and based upon the evidence at trial, this Court finds that the home located at * * Florida Ave has a value of approximately $825,000 (Pl. Ex. 18).
In addition, the plaintiff has established his entitlement to summary judgment on his second cause of action that he is entitled to a greater share and interest in the proceeds of the sale of the premises based on the equities, but not as to the amount of that share or interest. It is well settled that "[a] partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" (Costanza v Galluzzo, 41 AD3d 414, 835 NYS2d 919 [2d Dept 2007], quoting Cook v Petito, 208 AD2d 886, 619 NYS2d 571 [2d Dept 1994]; see also Berlin v Wojnarowski, 32 AD3d 810, 820 NYS2d 855 [2d Dept 2006]; Lemcke v Lemcke, 13 AD3d 1062, 787 NYS2d 562 [4th Dept 2004] Hunt v Hunt, 13 AD3d 1041, 788 NYS2d 219 [3d Dept 2004], lv denied 8 NY3d 812, 836 NYS2d 551 [2007]). In ascertaining the equities involved, an accounting is necessary to assist in determining the parties' rights, shares and interests in the real property and any sale proceeds (RPAPL 911; Tedesco v Tedesco, supra; Deitz v Deitz, 245 AD2d 638, 664 NYS2d 868 [3d Dept 1997]).
In addition, the plaintiff has established his entitlement to summary judgment on his second cause of action that he is entitled to a greater share and interest in the proceeds of the sale of the premises based on the equities, but not as to the amount of that share or interest. It is well settled that "[a] partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" (Costanza v Galluzzo, 41 AD3d 414, 835 NYS2d 919 [2d Dept 2007], quoting Cook v Petito, 208 AD2d 886, 619 NYS2d 571 [2d Dept 1994]; see also Berlin v Wojnarowski, 32 AD3d 810, 820 NYS2d 855 [2d Dept 2006]; Lemcke v Lemcke, 13 AD3d 1062, 787 NYS2d 562 [4th Dept 2004] Hunt v Hunt, 13 AD3d 1041, 788 NYS2d 219 [3d Dept 2004], lv denied 8 NY3d 812, 836 NYS2d 551 [2007]). In ascertaining the equities involved, an accounting is necessary to assist in determining the parties' rights, shares and interests in the real property and any sale proceeds (RPAPL 911; Tedesco v Tedesco, supra; Deitz v Deitz, 245 AD2d 638, 664 NYS2d 868 [3d Dept 1997]).
In addition, the plaintiff has established his entitlement to summary judgment on his second cause of action that he is entitled to a greater share and interest in the proceeds of the sale of the premises based on the equities, but not as to the amount of that share or interest. It is well settled that "[a] partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" (Costanza v Galluzzo, 41 AD3d 414, 835 NYS2d 919 [2d Dept 2007], quoting Cook v Petito, 208 AD2d 886, 619 NYS2d 571 [2d Dept 1994]; see also Berlin v Wojnarowski, 32 AD3d 810, 820 NYS2d 855 [2d Dept 2006]; Lemcke v Lemcke, 13 AD3d 1062, 787 NYS2d 562 [4th Dept 2004] Hunt v Hunt, 13 AD3d 1041, 788 NYS2d 219 [3d Dept 2004], lv denied 8 NY3d 812, 836 NYS2d 551 [2007]). In ascertaining the equities involved, an accounting is necessary to assist in determining the parties' rights, shares and interests in the real property and any sale proceeds (RPAPL 911; Tedesco v Tedesco, supra; Deitz v Deitz, 245 AD2d 638, 664 NYS2d 868 [3d Dept 1997]).
In addition, the plaintiff has established his entitlement to summary judgment on his second cause of action that he is entitled to a greater share and interest in the proceeds of the sale of the premises based on the equities, but not as to the amount of that share or interest. It is well settled that "[a] partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" (Costanza v Galluzzo, 41 AD3d 414, 835 NYS2d 919 [2d Dept 2007], quoting Cook v Petito, 208 AD2d 886, 619 NYS2d 571 [2d Dept 1994]; see also Berlin v Wojnarowski, 32 AD3d 810, 820 NYS2d 855 [2d Dept 2006]; Lemcke v Lemcke, 13 AD3d 1062, 787 NYS2d 562 [4th Dept 2004] Hunt v Hunt, 13 AD3d 1041, 788 NYS2d 219 [3d Dept 2004], lv denied 8 NY3d 812, 836 NYS2d 551 [2007]). In ascertaining the equities involved, an accounting is necessary to assist in determining the parties' rights, shares and interests in the real property and any sale proceeds (RPAPL 911; Tedesco v Tedesco, supra; Deitz v Deitz, 245 AD2d 638, 664 NYS2d 868 [3d Dept 1997]).
In light of the Court's decision to direct a sale of the subject real property, the third branch of the plaintiffs motion for summary judgment must be addressed. It is well settled that "[a] partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale" ( Costanza vGalluzzo, 41 AD3d 414, 835 NYS2d 919, quotingCook v Petito, 208 AD2d 886, 619 NYS2d 571; see also, Berlin v Wojnarowski, 32 AD3d 810, 820 NYS2d 855; Lemcke v Lemcke, 13 AD3d 1062, 787 NYS2d 562 Hunt v Hunt, 13 AD3d 1041, 788 NYS2d 219, lv denied 8 NY3d 812, 836 NYS2d 551). In ascertaining the equities involved, an accounting is necessary to assist in determining the parties' rights, shares and interests in the real property and any sale proceeds (RPAPL 911; Tedesco v Tedesco, supra;Deitz v Deitz, 245 AD2d 638, 664 NYS2d 868).