Opinion
April 24, 1992
Appeal from the Supreme Court, Monroe County, Willis, J.
Present — Denman, P.J., Green, Balio, Boehm and Fallon, JJ.
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 N.Y. 344; Wood v Fleet, 36 N.Y. 499; see generally, 24 N.Y. 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, D.M.D. Ralph Epstein, D.D.S., P.C. v J. William Bridbord, D.D.S., P.C., 113 A.D.2d 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 A.D.2d 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 A.D.2d 721; Giglio v Giglio, 46 A.D.2d 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 A.D.2d 65, affd 32 N.Y.2d 755), those defenses are not available in a partition action (Jones v Gabrielli, 6 A.D.2d 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.