

MurrayRayeDebbie, LLC v Rosenphil LLC (2019 NY Slip Op 04108)





MurrayRayeDebbie, LLC v Rosenphil LLC


2019 NY Slip Op 04108


Decided on May 28, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 28, 2019

Sweeny, J.P., Richter, Kapnick, Oing, JJ.


156640/17 9442 9441

[*1]MurrayRayeDebbie, LLC, et al., Plaintiffs-Respondents,
vRosenphil LLC, Defendant-Appellant.


Spolzino Smith Buss & Jacobs LLP, Yonkers (Jeffrey D. Buss of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Henry M. Mascia of counsel), for respondents.

Judgment and order (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered September 19, 2018, directing the partition and sale of the subject building, and bringing up for review an order, same court and Justice, entered July 10, 2018, which granted plaintiffs' motion for summary judgment, unanimously affirmed, without costs.
Plaintiffs established their prima facie case under RPAPL 901(1) by establishing that 1) the parties own the building as tenants in common and 2) physical partition of the property would come at great prejudice to the owners (Ferguson v McLoughlin, 184 AD2d 294 [1st Dept 1992]). In opposition, defendant failed to raise an issue of fact or a viable affirmative defense based on an alleged deal between plaintiffs and the tenant of the building (Estate of Steingart v Hoffman, 33 AD3d 465, 466 [1st Dept 2006]).
We have considered the parties' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 28, 2019
CLERK


