Opinion
April 20, 1987
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the interlocutory judgment is reversed, on the law, without costs or disbursements, the defendant's motion for summary judgment is granted, the cross motion is denied, and the complaint is dismissed.
The defendant and the plaintiff's decedent Leonard F. McNally were married in 1947. In 1961, certain real property located in Old Bethpage, New York, was conveyed to them as tenants by the entirety. They were divorced in 1970. Mr. McNally died in 1972. This is an action brought by the executrix of Mr. McNally's estate for the partition of the property located in Old Bethpage, where the defendant, the decedent's ex-wife, has resided continuously since 1961. Special Term granted summary judgment in favor of the plaintiff. We reverse.
The judgment of divorce entered in 1970 terminated the tenancy by the entirety, and rendered the defendant and the plaintiff's decedent tenants in common (see, Matter of Violi, 65 N.Y.2d 392, 395; Kahn v Kahn, 43 N.Y.2d 203, 207; Stelz v Shreck, 128 N.Y. 263, 267). Under the general rule, therefore, the plaintiff's decedent, and hence his estate, would be entitled to seek a partition of the property pursuant to RPAPL 901 (1) (see, Yax v Yax, 240 N.Y. 590; Ripp v Ripp, 38 A.D.2d 65, 67, affd 32 N.Y.2d 755; Luvera v Luvera, 119 A.D.2d 810, 811; Gasko v Del Ventura, 96 A.D.2d 896).
However, the general rule yields, in this case, to the well-recognized exception that equity will not award partition to a party in violation of his own agreement (Chew v Sheldon, 214 N.Y. 344; Altman v Altman, 271 App. Div. 884, affd 297 N.Y. 973). Put somewhat differently, an agreement not to partition is a valid defense to an action for partition (see, Ogilby v Hickok, 144 App. Div. 61, affd 202 N.Y. 614; Smith v Smith, 214 App. Div. 383; see also, 14 Carmody-Wait 2d, N Y Prac § 91:91, at 384-385; 68 CJS, Partition, § 44).
In the case under review, the plaintiff's decedent executed a separation agreement with the defendant in 1965 in which it was stipulated that the defendant would have the contractual right to exclusively occupy the subject premises. The defendant, for her part, promised to pay the mortgage and insurance payments, as well as the taxes relating to the subject premises. Absolutely no limitation was placed on the defendant's right to occupy the subject residence, and no such limitation is reasonably inferable from the terms of the agreement. Thus, the plaintiff's decedent in effect agreed to refrain from exercising his right to partition for the duration of the defendant's life (provided, of course, that she remain in occupancy of the premises and paid the mortgage, insurance premiums and taxes) (see, Ripp v Ripp, supra; Petty v Petty, 79 A.D.2d 679, 680, lv denied 53 N.Y.2d 605; Orologio v Orologio, 82 Misc.2d 1022, 1024).
The plaintiff argues that such an agreement not to seek partition for the duration of a cotenant's life is an unreasonable restraint on alienation. We disagree, and note that numerous courts have upheld just the sort of agreement that is involved in this case (see, e.g., Kopp v Kopp, 339 Pa. Super. 230, 488 A.2d 636; McDowell v McDowell, 61 N.C. App. 700, 301 S.E.2d 729, 731; Condrey v Condrey, 92 So.2d 423, 426 [Fla]; see also, Davies v Davies, 65 Misc.2d 480, 482). The case of Luvera v Luvera (supra) is distinguishable. In that case, the former tenants by the entirety had expressly agreed to sell the subject property; there was no such agreement in the instant case. Thus, in Luvera v Luvera (supra) the parties did not contemplate that one ex-spouse would have the right to occupy the subject residence for the rest of his or her life. For the reasons heretofore discussed, the intention of the plaintiff's decedent, as revealed by the unambiguous terms of the 1965 separation agreement, was to allow the defendant to reside in the subject residence for the rest of her life. He, therefore, agreed not to seek partition, and his executrix is bound by that agreement. Accordingly, the interlocutory judgment under review is reversed, and summary judgment is granted in favor of the defendant. Mangano, J.P., Bracken, Eiber and Spatt, JJ., concur.