Justice Joan Kenney
In an action for a partition, Diaz sought an order, pursuant to CPLR 3212, granting him judgment on the claims filed against Alcantara. Diaz also sought entitlement to the division and sale of a residential building owned between the parties as tenants in common. Diaz contended that the proceeds of the sale of the property at a public auction must be distributed in accordance with the parties’ rights after a hearing. Diaz further sought to dismiss Alcantara’s counterclaims and strike her affirmative defenses. The court concluded that Diaz properly stated the elements necessary for a cause of action for partition of the property, which included showing ownership, right to possession of the property, and an assertion that physical partition alone could not be made without great prejudice. The court further held that Diaz’s prima facie entitlement to a partition was rebutted by Alcantara’s assertions and undisputed claims of having been the sole caretaker of the property for the past 11 years. However, the court added that Diaz was entitled to an accounting of the property and referred the matter to a referee to hear and report on the parties’ property rights and interests.
