        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

219
CA 13-01368
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


CHARLES COONEY, JR., EVELINE COONEY ELKERTON,
PLAINTIFFS-APPELLANTS,
FAY THIBEAULT AND JUDE PRIEST, PLAINTIFFS,

                    V                             MEMORANDUM AND ORDER

PHILIP SHEPARD, DEFENDANT-RESPONDENT.


CARROLL & CARROLL LAWYERS, P.C., SYRACUSE (JOHN BENJAMIN CARROLL OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (RICHARD L. WEBER OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Charles C. Merrell, J.), entered April 30, 2013. The order, among
other things, denied in part the cross motion of plaintiffs Charles
Cooney, Jr. and Eveline Cooney Elkerton for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking partition
and sale of real property on Skaneateles Lake, as well as past rent
and interest covering time that defendant occupied the property. The
property, which includes a seasonal residence and a garage, is owned
by plaintiffs and defendant as tenants in common. Defendant owns a
50% interest, and each plaintiff owns a 12.5% interest, in the
property. In his answer, defendant asserted three counterclaims, the
third of which was based on unjust enrichment, seeking reimbursement
for money he expended on the property, including but not limited to
money for taxes, repairs, maintenance and renovation expenses. As
relevant to this appeal, plaintiffs-appellants (hereafter, plaintiffs)
cross-moved for summary judgment seeking an order dismissing
defendant’s counterclaims against them, determining that defendant is
liable to them for rent “for his sole use and occupation of the
jointly owned premises” and directing partition and sale of the
property.

     Supreme Court granted the cross motion in part, dismissing the
first and second counterclaims, and directing partition and sale of
the property. In denying that part of the cross motion seeking
summary judgment for past rent, the court determined that defendant
was not liable to plaintiffs for rent because he did not exclude
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                                                         CA 13-01368

plaintiffs, i.e., tenants in common, from the property. In denying
that part of the cross motion seeking summary judgment dismissing the
third counterclaim, for unjust enrichment, the court determined that
defendant was entitled to an increased percentage of the proceeds of
the sale of the property as an offset for “property taxes and
repairs,” and stated that it would schedule an inquest to determine
the amount of that offset.

     Contrary to plaintiffs’ contention, the court properly determined
that defendant was not liable to them for the value of defendant’s use
and occupancy. “[P]artition is an equitable remedy in nature and [the
court] has the authority to adjust the rights of the parties so [that]
each receives his or her proper share of the property and its
benefits” (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common “has
the right to take and occupy the whole of the premises and preserve
them from waste or injury, so long as he or she does not interfere
with the right of [the other tenants] to also occupy the premises”
(Jemzura v Jemzura, 36 NY2d 496, 503). “Mere occupancy alone by one
of the tenants does not make that tenant liable to the other tenant[s]
for use and occupancy absent an agreement to that effect or an ouster”
(McIntosh v McIntosh, 58 AD3d 814, 814; see Misk v Moss, 41 AD3d 672,
673, lv dismissed 9 NY3d 946, lv denied 10 NY3d 704), both of which
are absent here.

     Contrary to plaintiffs’ further contention, the court properly
determined that defendant was entitled to be reimbursed for payments
that he made for property taxes and repairs. It is well settled that
a tenant in common is entitled to be reimbursed for the share of the
taxes paid by him for the benefit of other tenants in common (see
Worthing v Cossar, 93 AD2d 515, 518). Additionally, a tenant in
common is entitled to be reimbursed for money expended in maintaining,
repairing and improving the property, if such maintenance, repairs,
and improvements were undertaken in good faith and were necessary to
protect or preserve the property (see Degliuomini v Degliuomini, 45
AD3d 626, 628; Worthing, 93 AD2d at 518). Under the circumstances
here, we conclude that the court properly determined that plaintiffs
were liable for the cost of repairs, with the amount to be determined
at the inquest (see Kwang Hee Lee v Adjmi 936 Realty Assoc., 34 AD3d
646, 648).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
