Opinion
514771/2018
01-04-2019
WEN FU WENG, Plaintiff, v. MEI JIE ZHAO, Defendants.
Perry Burkett, Esq., 2 Mott Street, Suite 601, New York, New York 10013, (212) 732-0030, Attorney for Plaintiff Rina Milos, Esq., 210 Canal Street, Suite 502, New York, New York 10013, (212) 966-4333, Attorney for Defendant
Perry Burkett, Esq., 2 Mott Street, Suite 601, New York, New York 10013, (212) 732-0030, Attorney for Plaintiff
Rina Milos, Esq., 210 Canal Street, Suite 502, New York, New York 10013, (212) 966-4333, Attorney for Defendant
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Wen Fu Weng (hereinafter plaintiff or Weng), filed on October 17, 2018, under motion sequence one, for an order granting a partition of certain real property (the subject property) and an accounting of the parties' respective interest therein pursuant to RPAPL 901 and CPLR 3212. Defendant Mei Jie Zhao (hereinafter Zhao) has opposed the motion.
-Notice of Motion
-Affidavit in Support of Motion
-Exhibits of A to B
-Affirmation in Support of Motion
-Exhibits A to E
-Affirmation of Opposition
-Exhibits A to B
-Affirmation in Reply
MOTION PAPERS
Weng's motion papers consist of a notice of motion, Weng's affidavit, an affirmation of Perry Burkett, Weng's counsel, two exhibits annexed to Weng's affidavit and five exhibits annexed to Burkett's affirmation. Annexed as exhibit A to Weng's affidavit is a document purportedly describing the subject property. Annexed as exhibit B is a document described as a the deed for the subject property. Annexed as exhibit A to Burkett's affirmation is a copy of the summons and verified complaint. Annexed as exhibit B is the affidavit of service of the summons and verified complaint. Annexed as exhibit C is a copy of Zhao's notice of appearance and verified answer. Annexed as exhibit D is a copy of a letter from Burkett addressed to Zhao advising Zhao not to sell or mortgage the subject property without Weng approval and consent. Annexed as exhibit E is a copy of the United States Postal Office evidencing that a certified letter was unclaimed.
Zhao's opposition papers consist of an affirmation of Rina Milos, Zhao's counsel, and two annexed exhibits labeled A and B. Exhibit A is a copy of a stipulation between Weng and Zhao dated October 15, 2018 which adjourned Weng's deposition of Zhao's. Exhibit B is described as Zhao's combined discovery demands.
Weng submitted an affirmation of Burkett dated November 2, 2018 in reply.
BACKGROUND
On July 19, 2018, Weng commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The verified complaint alleges twenty four allegations of fact in support of two causes of action. The first cause of action is for a partition of the subject property and the second cause of action is for an accounting of the parties' respective interest in the subject property. On August 13, 2018, Zhao joined issue by interposing and filing a verified answer.
The verified complaint alleges the following salient fact. On May 11, 2010, Weng and Zhao purchased a property located at 38 28th Avenue, Brooklyn, New York 11214, a legal two-family home with no garage and two residential units (hereinafter the subject property). They held the subject property as joint tenants with each owning an undivided one half interest. On May 11, 2010, Weng and Zhao encumbered the subject property by executing a mortgage in favor of First American International Bank in the principal amount of $370,000.00.
Up until July 2016, Weng occupied a portion of the subject property. Those periods in which the subject property was occupied by rent paying tenants, it was Zhao who collected the rents. Zhao never accounted for or shared the rents collected with Weng. Zhao permitted two daughters to occupy the first floor of the subject property for years without Weng's consent and also had other rent paying tenants from time to time.
Weng seeks an order, among other things, declaring that Weng and Zhao each own an undivided one half interest in the subject property. Weng also seeks an order granting a partition of the subject property and directing that Zhao account for the income received and expenses incurred in the maintenance of the subject property.
LAW AND APPLICATION
It is well established that summary judgement may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgement as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank , 100 NY2d 72 [2003] ).
A failure to make that showing requires the denial of the summary judgement motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio , 81 NY2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ).
"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgement upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that cause of action or defense has no merit". Further, all evidence must be viewed in the light most favorable to the opponent of the motion ( Marine Midland Bank v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2nd Dept 1990] )" ( People ex rel. Spitzer v. Grasso , 50 AD3d 535, 544 [1st Dep 2008] ).
Cause of Action for Partition
"A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" ( RPAPL 901 [1 ] ). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties ( Tsoukas v. Tsoukas , 107 AD3d 879, 889 [2nd Dept 2013] citing, Pando v. Tapia , 79 AD3d 993, 995 [2nd Dept 2010] ; see also Stressler v. Stressler , 193 AD2d 728 [2nd Dept 1993] ). Thus, partition may be precluded by the equities presented in a given case ( Ferguson v. McLoughlin , 184 AD2d 294 [1st Dept 1992] ).
The right to partition is absolute in the absence of countervailing conditions, and therefore, such issues as the interest of the parties and whether partition may be had without great prejudice should first be determined ( Bentley v. Dox , 12 AD3d 1187 [4th Dept 2004] ).
An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas , 107 AD3d 879, supra Arata v. Behling , 57 AD3d 925 [2nd Dept 2008] ).
Weng has made a prima facie showing of entitlement to judgment as a matter of law by submitting a copy of the duly-executed deed demonstrating Weng's ownership and the right to possession of the subject property as a joint tenant with Zhao.
The only sworn allegations of fact Zhao submitted in opposition to Weng's motion was the affirmation of Rina Milos, Zhao's counsel. Milos contends that Weng's motion for summary judgment on the cause of action for partition is premature due to outstanding discovery. Zhao is apparently relying on CPLR 3212 (f) which states, "Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion ..."
The main burden on the opposing party here is to convince the court in the opposing affidavits that facts may exist to defeat the motion. The court should also be shown the sources through which the opposing party believes the needed evidence can be secured (David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of NY, Book 7B, CPLR C3211:49 as referenced by CPLR C3212:33). Milos's affirmation, however, demonstrates no personal knowledge of the underlying transactions alleged in the verified complaint. Consequently, Zhao has provided no evidentiary basis to suggest that discovery might lead to relevant evidence. Nor has Zhao shown that facts essential to justify opposition to the motion are exclusively within knowledge and control of Weng ( Lopez v. WS Distribution, Inc. , 34 AD3d 759, 760 [2nd Dept 2006] ). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion ( Lopez , 34 AD3d at 760 ; Arbizu v. REM Transp. , 20 AD3d 375 [2nd Dept 2005] ). Furthermore, contrary to the arguments made in Zhao papers, RPAPL 901 contains no requirement that a party seeking partition must prove that he paid a substantial or any portion of the purchased price or mortgage payments for the property in question.
The Cause of Action for an Accounting
Partition, although statutory, is an equitable remedy in nature and the Supreme Court has the authority to adjust the rights of the parties so each receives his or her proper share of the property and its benefits (see Khotylev v. Spektor, 165 AD3d 1088, 1090 [2nd Dept 2018] citing Brady v. Varrone , 65 AD3d 600, 602 [Dept 2009] ). Further, because a partition action is equitable in nature, an accounting is a necessary incident thereto ( Khotylev, 165 AD3d at 1090 citing Tedesco v. Tedesco , 269 AD2d 660, 661 [3rd Dept 2000] ). In light of the parties' dispute as to their respective entitlements to the proceeds from the sale of the property, an accounting is necessary to determine the parties' respective interests in the property ( Khotylev , 165 AD3d at 1090 citing Lauriello v. Gallotta , 70 AD3d 1009, 1010 [2nd Dept 2010] ). In sum, Zhao has failed to raise a triable issue of fact in opposition to Weng's prima facie showing for a partition of the subject property and an accounting (see Manganiello v. Lipman , 74 AD3d 667, 669 [1st Dept 2010] ).
CONCLUSION
Wen Fu Weng's motion for an order granting a partition of the subject property pursuant to RPAPL 901 and CPLR 3212 is granted.
Wen Fu Weng's motion for an order granting an accounting of the parties' respective interest in the subject property is granted.
The foregoing constitutes the decision and order of this Court.