                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 5, 2017                    521841
________________________________

KAREN L. COHEN,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

SETH J. COHEN,
                    Appellant.
________________________________


Calendar Date:    November 16, 2016

Before:   Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

                              __________


      Ricciani & Jose LLP, Monticello (E. Danielle Jose-Decker of
counsel), for appellant.

     Gail Rubenfeld, Monticello, for respondent.

                              __________


Aarons, J.

      Appeal from a judgment of the Supreme Court (Cahill, J.),
entered December 3, 2014 in Sullivan County, ordering, among
other things, equitable distribution of the parties' marital
property, upon a decision of the court.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 2007. The wife commenced this
action for divorce in 2009. After a nonjury trial, Supreme
Court, sua sponte, converted the parties' request for equitable
distribution of the marital residence to a claim for partition of
the property because the parties acquired the property before the
marriage as joint tenants with the right of survivorship.
Supreme Court also, among other things, granted the wife sole
                               -2-                521841

ownership of the marital residence,1 awarded her possession of a
four-wheel all-terrain vehicle (hereinafter four-wheeler) and,
after calculating the credit due to the wife based upon her
contributions to the marital residence, determined that the
amount of such credit exceeded the amount of the husband's
equitable share in the marital residence. The husband appeals.2


      As an initial matter, we disagree with the husband that
Supreme Court's sua sponte conversion of the parties' request for
equitable distribution of the marital residence into a claim for
partition was erroneous. "Although a partition action is
statutory, it is equitable in nature" (Deitz v Deitz, 245 AD2d
638, 639 [1997] [internal citation omitted]). Inasmuch as
Supreme Court is empowered to "adjust the rights of the parties
so each receives his or her proper share of the property and its
benefits" (Hunt v Hunt, 13 AD3d 1041, 1042 [2004]; see Domestic
Relations Law § 234; Kahn v Kahn, 43 NY2d 203, 209 [1977];
Rossignol v Rossignol, 82 AD3d 1335, 1336 [2011]), we find no
error in Supreme Court's decision to treat the action as one
seeking partition of the marital residence.

      We also disagree with the husband's claim that Supreme
Court, when calculating the amount of equity in the marital
residence, should have used the amount of principal that existed
on the mortgage prior to when it was refinanced in 2005, as
opposed to the amount that remained after the refinancing. While
part of the proceeds from the refinanced loan were used to pay
some of the wife's debts, such proceeds were not marital funds
inasmuch as the refinancing took place prior to the parties'
marriage (compare Biagiotti v Biagiotti, 97 AD3d 941, 943 [2012];
Nidositko v Nidositko, 92 AD3d 653, 656 [2012]). In addition, it


     1
        In his brief, the husband concedes that the wife should
have ownership of the marital residence.
     2
        Although the husband's notice of appeal sets forth the
incorrect entry date of the judgment from which he appeals, upon
the exercise of our discretion, we will overlook such defect and
treat the notice of appeal as valid (see CPLR 5520 [c]).
                               -3-                521841

was the husband who suggested to the wife that they refinance the
loan to pay off her debts, and he ultimately consented to it.
Under these circumstances, we conclude that Supreme Court did not
err in subtracting the amount of the principal balance due on the
loan after it had been refinanced from the stipulated amount of
the fair market value of the marital residence in calculating the
equity amount.

      To that end, in light of the parties' stipulation that the
fair market value of the home was $215,5003 and the principal
balance of the loan that remained outstanding after it had been
refinanced in 2005 was $178,695.05, the amount of equity in the
marital home was $36,804.95. Each party was thus entitled to one
half of that equity amount – i.e., approximately $18,403. This
amount, however, is subject to a reduction based upon
expenditures made by one party in excess of his or her
obligations (see Sharpe v Raffer, 69 AD3d 1137, 1137-1138 [2010],
lv dismissed 15 NY3d 800 [2010]; Brady v Varrone, 65 AD3d 600,
602 [2009]; Vlcek v Vlcek, 42 AD2d 308, 310-311 [1973]). Here,
even though the husband remained in the marital residence until
January 2010, the wife, starting in June 2009, paid from her
separate financial account the household bills, expenses and the
mortgage. Furthermore, after the husband left the marital
residence, the wife, still from her own separate financial
account and without any contribution from the husband, continued
to make payments to reduce the principal on the mortgage. The
wife alone also paid other expenses to maintain the marital
residence (see Beardslee v Beardslee, 124 AD3d 969, 969 [2015];
Lurie v Lurie, 94 AD3d 1376, 1378 [2012]).

      We are unpersuaded by the husband's contention that the
wife was not entitled to credits based upon her separate payments
that were made outside the time period between July 1, 2009 and
January 13, 2010. While the husband was ordered to pay one half
of certain expenses between that specific time period in a prior
pendente lite order, this order also noted that any inequity in


     3
        Supreme Court's decision incorrectly stated that the
stipulated fair market value of the marital residence was
$215,000.
                              -4-                  521841

such payment may be addressed in the final distribution of
marital assets. Supreme Court was therefore entitled to take
into account the wife's expenditures made before July 1, 2009 and
after January 13, 2010. Based upon the trial testimony and
documentary evidence, the court correctly calculated that the
amount of credits that the wife would be entitled to, based upon
her expenditures, exceeded the husband's share of the equity
amount. Under these circumstances, the husband would owe the
wife a monetary amount, but Supreme Court declined to order the
husband to pay the wife for the amount due to her. In light of
the equitable principles underlying a partition claim, we see no
reason to disturb Supreme Court's determination on this point.

      We do, however, find merit in the husband's assertion that
Supreme Court erred in awarding the wife sole possession of the
four-wheeler inasmuch as Supreme Court should not have treated it
as marital property subject to equitable distribution. The
record reveals that, although the wife was the title owner of the
four-wheeler, she purchased and gave it to the husband as a
birthday gift prior to their marriage. As such, we conclude that
the four-wheeler was the separate property of the husband and
should not have been awarded to the wife (see Domestic Relations
Law § 236 [B] [1] [d] [1]; Ceravolo v DeSantis, 125 AD3d 113, 116
[2015]; Owens v Owens, 107 AD3d 1171, 1172-1173 [2013]; cf.
Epstein v Epstein, 289 AD2d 78, 78 [2001]).

     Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur.


      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as awarded plaintiff the
four-wheel all-terrain vehicle; said vehicle is awarded to
defendant; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
