Practice point: The Appellate Division determined that plaintiff is entitled as a matter of law to the partition and sale of the apartment under Real Property Actions and Proceedings Law (RPAPL) § 901. In the record there was support for a finding that the parties are tenants in common, and defendant did not raise an issue of fact contesting the assertion that the apartment's value is maximized by remaining undivided, or that the parties would be prejudiced by dividing it.
The Appellate Division noted that defendant may not invoke the notice provision in RPAPL § 1304, and is not entitled to a court-supervised settlement conference under CPLR 3408, as the definitions of "home loan" and "lender" under the statute have not been met.
Student note: For the purposes of RPAPL § 901(1), a plaintiff may be in "possession" of the apartment, despite not having lived in it.
Case: Lane v. Tyson, NY Slip Op 08623 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: A motion for leave to renew.
