Gasko v. Del Ventura ( 1983 )

— In an action for partition, plaintiff appeals from an order of the Supreme Court, Westchester County (Rosenblatt, J.), dated January 13,1983, which denied his motion for summary judgment. Order affirmed, with costs. Although a divorce converts a tenancy by the entirety to a tenancy in common {Stelz v Shreck, 128 NY 263) the ex-husband’s right to maintain an action for partition is subject to equitable considerations as between husband and wife (Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755 on opn of Hopkins, J.). Plaintiff, as judgment creditor of the ex-husband, and as recipient of a Sheriff’s deed conveying the ex-husband’s interest in the property to him, had no rights greater than that of the ex-husband, “in whose shoes plaintiff stood” (see Bank of New York v Stauble, 84 AD2d 530, 531). Since there are issues of fact as to the extent of such equities, summary judgment was properly denied. Mollen, P. J., Weinstein and Rubin, JJ., concur.