Opinion
Argued February 4, 2000
March 30, 2000
In an action for the partition of real property pursuant to RPAPL article 9, the defendants appeal from an interlocutory judgment of the Surrogate's Court, Suffolk County (Prudenti, S.), entered December 14, 1998, which, after a nonjury trial, determined, inter alia, that the plaintiff possesses an equal undivided one-half interest in the subject property as tenant-in-common with the decedent's estate and that the defendants are not entitled to an offset from the plaintiff for taxes and insurance premiums that the decedent paid on the property.
Nancy K. Munson, Huntington, N.Y. (Edward A. Moritz of counsel), for appellants.
Anthony T. Scotto, Garden City, N.Y., for respondent.
WILLIAM C. THOMPSON, J.P., SONDRA MILLER, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the interlocutory judgment is affirmed, with costs.
The Surrogate properly determined that the defendants failed to rebut the presumption that the plaintiff held an equal undivided one-half interest in the subject premises as tenant-in-common with the decedent (cf., Moran v. Thomas, 280 App. Div. 1037; Perrin v. Harrington, 146 App. Div. 292 ). Moreover, the Surrogate's determination that the decedent waived his right to seek contribution for the payment of taxes and insurance premiums in exchange for the plaintiff's implied waiver of her right to occupy the premises after she moved out sometime in 1975 is amply supported by the record, and the defendants were not entitled to an offset therefor (see, Jemzura v. Jemzura, 36 N.Y.2d 496 ).
The defendants' remaining contentions are without merit.
THOMPSON, J.P., S. MILLER, FLORIO, and SCHMIDT, JJ., concur.