Summary
denying reimbursement for repairs where there was insufficient evidence to support a claim for a credit and denying reimbursement for cost of an addition to the property because “a co-tenant is not entitled to an allowance for improvements which are not in the nature of repairs or restoration and are made for the co-tenant's own purposes without the agreement or consent of the other co-tenants”
Summary of this case from Melnick v. PressOpinion
February 27, 1995
Appeal from the Supreme Court, Suffolk County (Baisley, J.).
Ordered that the interlocutory judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
RPAPL 943 and 945 provide that, in a partition action, the court may adjust the rights of the parties where one party receives more than his or her proper proportion of the rents or profits from the property. While an accounting is necessary where there is evidence that one party has received a disproportionate share of the rents or profits from real property, there must be evidence that the party from whom an accounting is sought actually received the rents and profits (see, Grossman v. Baker, 182 A.D.2d 1119; see also, Goldberg v Ochman, 143 A.D.2d 255, 258; Worthing v. Cossar, 93 A.D.2d 515).
In the present case, the record indicates that the defendant's second husband constructed an addition to the residence while the defendant was in exclusive possession of the property for the sole purpose of providing a home for the defendant's daughter. Although the daughter paid some rent to the defendant, the record further indicates that the defendant and her husband considered the payments to be a contribution toward the cost of building the addition, and they never determined the fair market rental value of the addition, nor did they intend to rent it to nonfamily members (see, Gordon v. Schroeder, 138 Misc. 688). Under the circumstances, the money collected by the defendant is not in the nature of rents and does not represent profit. Therefore, the plaintiff is not entitled to an accounting.
Although, generally, a tenant in common may be allowed reimbursement for repairs which are necessary to protect or preserve the property, there is insufficient evidence in the record to support the defendant's claim for a credit for such repairs (see, Worthing v. Cossar, supra, at 518; see also, Kraker v. Roll, 100 A.D.2d 424). Further, the defendant's claim for reimbursements for the cost of the addition to the residence was properly dismissed since a co-tenant is not entitled to an allowance for improvements which are not in the nature of repairs or restoration and are made for the co-tenant's own purposes without the agreement or consent of the other co-tenants (see, Cosgriff v. Foss, 152 N.Y. 104; Scott v. Guernsey, 48 N.Y. 106; Peerless Candy Co. v. Kessler, 123 Misc. 735; see also, 14 Carmody-Wait 2d, N.Y. Prac, § 91:251).
Contrary to the defendant's contention, any alleged arrears in the payment of child support and/or maintenance obligations would not act as a bar to the plaintiff's right to seek a partition (see, Grossman v. Baker, supra; Goldberg v. Goldberg, 173 A.D.2d 679). Moreover, although a counterclaim for arrears may be asserted by a former spouse in a partition proceeding (see, Luvera v. Luvera, 119 A.D.2d 810; Maisto v. Maisto, 75 A.D.2d 886), upon review of the record we agree with the Supreme Court's finding that the defendant failed to adduce sufficient evidence to support her claim for arrears.
The defendant's remaining contentions are without merit or unpreserved for appellate review. Balletta, J.P., Thompson, Joy and Florio, JJ., concur.