Ordered that the order dated March 13, 2006, is affirmed insofar as appealed from, without costs or disbursements; and it is further, Ordered that the order dated April 13, 2006 is modified, on the facts, by deleting the provision thereof providing that the defendant is entitled to her portion of the proceeds of the sale of the Bahamas property if the sale had already been consummated, and substituting therefor a provision awarding the defendant the sum of $5,250 for her portion of the proceeds of the sale of the Bahamas property; as so modified, the order dated April 13, 2006 is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof directing the referee to deduct the sum of $47,825 from the defendant's share of the proceeds of the sale of the marital residence to satisfy her liability to the plaintiff for one half of the rental income she collected through April 30, 2005; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the interlocutory judgment is modified accordingly.
The defendant's contention that she is entitled to one half of the rental income allegedly received by the plaintiff for property in the Bahamas in which the parties owned a one-half interest is without merit. The judgment of divorce provided that the Bahamas property would be sold as soon as possible, and the proceeds divided equally. However, there was no provision directing the plaintiff to give the defendant a share of any rental income, nor is there any evidence in the record that the plaintiff received any rental income from the Bahamas property.
However, the defendant is entitled to one half of the proceeds of the sale of the parties' one-half interest in the Bahamas property, as provided in the judgment of divorce. The Supreme Court stated in its order dated April 13, 2006 that the defendant had properly raised the issue of the plaintiffs sale of the Bahamas property, and that if that sale had already been consummated, the defendant would be entitled to her portion of the proceeds from the sale as provided in the judgment of divorce. In opposition to the plaintiffs cross motion for an award of an attorney's fee and sanctions, the defendant submitted a copy of the deed by which the plaintiff and the other owner transferred ownership of the Bahamas property to a third party as of August 20, 2002, for the sum of $21,000. Therefore, the defendant is entitled to the sum of $5,250, representing her half of the proceeds from the sale of the parties' one-half interest in the property.
"Partition, although statutory (RPAPL art 9), is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of the sale" ( Freigang v Freigang, 256 AD2d 539, 540). Here, however, the court erred in directing in the judgment in the partition action that $47,825 would be deducted from the defendant's share of the proceeds to satisfy her liability to the plaintiff for one half the rental income collected by her through April 30, 2005. The judgment of divorce did not provide that the plaintiff would receive any rental income received by the defendant during the period of her exclusive occupancy. Furthermore, the defendant correctly contends that the issue of rental income on the marital property did not involve a long account, and therefore the court was not authorized to make a reference to hear and determine ( see CPLR 4317 [b]; Matter of Marett v Pegalis Wachsman, 176 AD2d 321; Schanback v Schanback, 130 AD2d 332).
The defendant's remaining contentions are without merit. The court did not err in denying the plaintiffs cross motion for an award of an attorney's fee and sanctions. The defendant's claim for her portion of the sale proceeds from the Bahamas property was meritorious. There is no evidence that any of the defendant's conduct was undertaken primarily to harass or maliciously injure the plaintiff, or that the defendant asserted material factual statements that were false ( see Mascia v Maresco, 39 AD3d 504).