Judges： Devine, Garry, Lahtinen, Peters, Stein
Filed Date： 10/23/2014
Status： Precedential
Modified Date： 11/1/2024
Cross appeals (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Knipel, J.), entered May 23, 2012 in Kings County, which, in an action pursuant to RPAPL article 9, among other things, partially granted the referee’s motion to, among other things, confirm the report of sale.
Plaintiff and defendant Thomas H. Hemmings owned, as tenants in common, an apartment building in Kings County and, in December 2005, plaintiff commenced this action pursuant to RPAPL article 9 seeking, among other things, the sale of the real property and an accounting. Plaintiff moved for summary judgment and Supreme Court issued an interlocutory judgment in September 2008 which, among other things, determined that actual partition of the property was not appropriate. The court directed that the property be sold at public auction and a ref
Hemmings contends that the manner in which the referee conducted the sale of the property and the terms of the sale were inequitable, thereby requiring this Court to set the sale aside. In particular, Hemmings states that the referee exceeded his authority when he permitted plaintiff to close on the sale after the 60-day time limitation set forth in the interlocutory judgment. Although Supreme Court provided that the referee could give the purchaser up to 60 days to tender the full payment, it further stated that the referee could “allow any [pjurchaser such reasonable adjournments of closing of title ... on such terms as to the [rjeferee may seem justified.” This provision clearly authorized the referee to extend the time within which plaintiff was required to proceed to closing (see Tambasco v Pesce, 213 AD2d 821, 822 [1995]; see also Associates Fin. Servs. v Davis, 133 AD2d 601, 602 [1987], appeal dismissed 71 NY2d 889 [1988], lv denied 72 NY2d 802 [1988]). Nor do we discern any sort of “unfair or oppressive conduct” that would compel us to set aside the judicial sale of the building (Tambasco v Pesce, 213 AD2d at 822; see Morpurgo v Morpurgo, 77 AD3d 714, 715 [2010]; Ferguson v McLoughlin, 198 AD2d 161, 161 [1993]).
Turning to plaintiffs argument that the referee should have held a hearing to decide, among other matters, whether Hemmings’ exclusive possession of the property served to, in effect, substantiate her ouster claim such that Supreme Court should have granted plaintiff’s request for compensation for use and occupancy, we agree with Supreme Court’s rejection of such claim. “The mere fact that a tenant enjoys exclusive use of a
We find merit, however, in the parties’ challenges to Supreme Court’s allocation of the proceeds from the sale of the building and, in particular, the rental income that accrued during the entirety of the cotenancy. In a partition and sale action of this nature, “an accounting of the income and expenses of the partitioned property is a necessary incident and should be had as a matter of right before entry of the interlocutory or final judgment and before any division of money between the parties” (McVicker v Sarma, 163 AD2d 721, 722 [1990]; see Donlon v Diamico, 33 AD3d 841, 842 [2006]). Despite the express requirement in Supreme Court’s interlocutory judgment that the referee conduct a hearing so that an accounting could be completed prior to the sale of the property, it does not appear that a hearing was held. Inasmuch as the record is unclear with regard to the amount of rent that was charged to and collected from a tenant of an apartment unit in the building, we find that further exploration by the finder of fact on the issue of rental income is necessary. Although Supreme Court awarded plaintiff “one-half the profits (total rents collected less expenses incurred) for the period from May 2009 until the sale in 2011,” such award fails to account for plaintiffs entitlement to rental income from the time that the cotenancy was created in January 2004 to April 2009. Further, the court improperly apportioned rent through the date of sale, rather than to the date that plaintiff closed on the sale months later. As the parties were not afforded an “opportunity for a hearing where they could present proof to support their claim to a greater share of the net sale proceeds” or rental income, we must remit this matter for a hearing (McVicker v Sarma, 163 AD2d at 722).
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as ordered equal division of total rental income for the period from May 2009 until the sale of the property; matter remitted to the Supreme Court for a hearing and determination of plaintiff’s and defendant Thomas H. Hemmings’ equitable share of the rental income and net sale proceeds; and, as so modified, affirmed.
. After the referee moved for leave to conduct a private sale of the property without plaintiffs consent and plaintiff cross-moved to remove the referee, Supreme Court, among other things, partially granted the referee’s motion. On plaintiffs appeal, this Court reversed that part of Supreme Court’s order as granted the referee’s motion due to the referee’s lack of standing to seek any modification of the interlocutory judgment (80 AD3d 1138 [2011]).
. A notice of appeal was filed by defendant Anthony J. Lamberti, who is the guardian of plaintiffs and Hemmings’ mother. As Lamberti failed to file a brief, his appeal is deemed abandoned (see General Elec. Capital Corp. v Highgate Manor Group, LLC, 69 AD3d 992, 993 n [2010]; Bergmann v State of New York, 281 AD2d 731, 732 n [2001]).