JAMES v. JAMES

Ordered that the order is affirmed, with costs.

"[O]ne who holds an interest in real property as a tenant in common may seek physical partition of the property, or, a partition and sale thereof unless it appears that physical partition alone would greatly prejudice the owners of the premises" ( Bufogle v Greek, 152 AD2d 527, 528; see RPAPL 901; Graffeo v Paciello, 46 AD3d 613, 614).

Here, the plaintiff established his entitlement to summary judgment by establishing his ownership and right to possession of the subject property pursuant to a duly-executed warranty deed conveying to him a one-half interest in the subject property as a tenant in common ( see RPAPL 901; Duffy v Duffy, 21 AD3d 928, 929; Dalmacy v Joseph, 297 AD2d 329, 330). While the right of a tenant in common pursuant to RPAPL 901 to maintain an action for partition is subject to the equities of the parties ( see Graffeo v Paciello, 46 AD3d 613, 614), here the equities favor the plaintiff's position ( see generally Donlon v Diamico, 33 AD3d 841, 842).

In opposing the plaintiff's motion for summary judgment, the defendant failed to raise a triable issue of fact as to whether his transfer of a one-half interest in the subject property to the plaintiff was made in reliance on a promise by the plaintiff to reconvey that interest ( see Sharp v Kosmalski, 40 NY2d 119, 121; Doria v Masucci, 230 AD2d 764, 765; Bufogle v Greek, 152 AD2d 527, 528; Gargano v V.C.J. Constr. Corp., 148 AD2d 417, 418). Accordingly, the Supreme Court properly rejected the defendant's contentions regarding the imposition of a constructive trust, and granted the plaintiff's motion for summary judgment ( see Sharp v Kosmalski, 40 NY2d 119, 121; Doria v Masucci, 230 AD2d 764, 765; Bufogle v Greek, 152 AD2d 527, 528; Gargano v V.C.J. Constr. Corp., 148 AD2d 417, 418).