Opinion
9441 9442 Index 156640/17
05-28-2019
MURRAYRAYEDEBBIE, LLC, et al., Plaintiffs–Respondents, v. ROSENPHIL LLC, Defendant–Appellant.
Spolzino Smith Buss & Jacobs LLP, Yonkers (Jeffrey D. Buss of counsel), for appellant. Rivkin Radler LLP, Uniondale (Henry M. Mascia of counsel), for respondents.
Spolzino Smith Buss & Jacobs LLP, Yonkers (Jeffrey D. Buss of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Henry M. Mascia of counsel), for respondents.
Sweeny, J.P., Richter, Kapnick, Oing, JJ.
Judgment and order (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered September 19, 2018, directing the partition and sale of the subject building, and bringing up for review an order, same court and Justice, entered July 10, 2018, which granted plaintiffs' motion for summary judgment, unanimously affirmed, without costs.
Plaintiffs established their prima facie case under RPAPL 901(1) by establishing that 1) the parties own the building as tenants in common and 2) physical partition of the property would come at great prejudice to the owners ( Ferguson v. McLoughlin , 184 A.D.2d 294, 584 N.Y.S.2d 816 [1st Dept. 1992] ). In opposition, defendant failed to raise an issue of fact or a viable affirmative defense based on an alleged deal between plaintiffs and the tenant of the building ( Estate of Steingart v. Hoffman , 33 A.D.3d 465, 466, 823 N.Y.S.2d 29 [1st Dept. 2006] ).
We have considered the parties' remaining contentions and find them unavailing.