                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   518277
________________________________

GRACE HEMMINGS GAPIHAN,
                    Appellant-
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
THOMAS H. HEMMINGS,
                    Respondent-
                    Appellant,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                             __________


      Law Office of Arnold J. Ludwig, New York City (Jeffrey
Berke of counsel), for appellant-respondent.

      Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for
respondent-appellant.

                             __________


Devine, J.

      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
                              -2-                518277

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 referee was appointed to
conduct the sale.1 Plaintiff purchased the property at auction
for $355,000 and the referee subsequently moved to confirm the
final report, distribute the sale proceeds and terminate the
reference. Plaintiff and Hemmings opposed the application.
Supreme Court partially granted the referee's motion, prompting
an appeal and cross appeal by plaintiff and Hemmings,
respectively.2

      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 [p]urchaser such
reasonable adjournments of closing of title . . . on such terms


    1
        After the referee moved for leave to conduct a private
sale of the property without plaintiff's consent and plaintiff
cross-moved to remove the referee, Supreme Court, among other
things, partially granted the referee's motion. On plaintiff's
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]).
    2
        A notice of appeal was filed by defendant Anthony J.
Lamberti, who is the guardian of plaintiff's and Hemmings'
mother. As Lamberti failed to file a brief, his appeal is deemed
abandoned (see General Elec. Capital Corp. v Highgate Manor
Corp., 69 AD3d 992, 993 n [2010]; Bergmann v State of New York,
281 AD2d 731, 732 n [2001]).
                              -3-                518277

as to the [r]eferee 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 plaintiff's 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
property held in common, without more, neither precludes
reimbursement from a cotenant of expenditures concerning the
property nor constitutes an 'ouster' of a cotenant" (Gamman v
Silverman, 98 AD3d 995, 997 [2012] [citation omitted]; see
McIntosh v McIntosh, 58 AD3d 814, 814 [2009]; Misk v Moss, 41
AD3d 672, 673 [2007], lv dismissed 9 NY3d 946 [2007], lv denied
10 NY3d 704 [2008]). Even if Hemmings, as plaintiff alleges, had
exclusive use of the commonly held building, such degree of
occupancy would not render Hemmings liable for all charges
against the property, including, but not limited to, the payment
for such purported exclusive use and occupancy that plaintiff
demanded (see Borock v Fray, 220 AD2d 637, 638 [1995]; Johnston v
Martin, 183 AD2d 1019, 1021 [1992]). While scant reference was
made to Hemmings' alleged refusal to grant plaintiff access to
the property, as the claim was unsupported by the proffer of
competent evidence, plaintiff failed to establish her ouster
claim (see Misk v Moss, 41 AD3d at 673; Corsa v Biernacki, 2 AD3d
388, 389 [2003]).

      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
                              -4-                518277

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 plaintiff's 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).

      As for Hemmings' cross appeal, we do not find any record
support for his assertion that certain of plaintiff's
expenditures to maintain the property, including the cost to
replace the roof, exceeded her obligations as a tenant in common,
thereby requiring the deduction of such costs from her award (see
Brady v Varrone, 65 AD3d 600, 602 [2009]; Quattrone v Quattrone,
210 AD2d 306, 307 [1994]). Moreover, while Hemmings challenges
Supreme Court's award of referee fees – including the assessment
of an additional $5,000 fee as against Hemmings due to his
continuous motions seeking, among other things, to stay and,
further, vacate the sale proceedings in which he actively
participated – we do not agree that the court abused its
discretion in making the award, given the protracted and
contentious nature of this matter (see CPLR 8003 [a], [b]; Matter
of Blake Terrace Assocs. v Sommers, 176 AD2d 394, 395 [1991]).
                              -5-                  518277

Finally, we have considered the balance of Hemmings' arguments,
including his claim that the court erred in refusing to grant him
$400,000 in property management fees, and find that they are
lacking in merit and, as such, do not require discussion.

     Peters, P.J., Lahtinen, Stein and Garry, JJ., concur.



      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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
