CORSA v. BIERNACKI

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Docket Number

2002-10455.

Attorney(S)

Spencer, Maston McCarthy, LLP, Huntington, N.Y. (Gilbert G. Spencer, Jr., of counsel), for appellant. Reynolds, Caronia, Gianelli Hagney, LLP (Devitt, Spellman, Barrett, Callahan Kenney, LLP, Smithtown, N.Y. [Diane K. Farrell] of counsel), for respondent.

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Smart Summary

Factual and Procedural Background

This appeal arises from an action involving, among other claims, partition of real property. The defendant, Anne Biernacki, appealed from a Supreme Court, Suffolk County order dated October 2, 2002. The order confirmed part of a Referee's report dated May 1, 2002, which found that the plaintiff, Elwood L. Corsa III, was constructively evicted from the subject property as of April 1999. The order fixed the parties' respective financial contributions for acquisition, maintenance, upkeep, and repair of the property, including mortgage, taxes, and insurance, as of April 1999. The court also denied the defendant’s cross-motion to reject the Referee’s report in its entirety. The appeal challenges these determinations.

Legal Issues Presented

Whether the plaintiff was constructively evicted or ousted from the subject property as of April 1999.
Whether the parties' respective contributions for the property's acquisition, maintenance, upkeep, and repair should be fixed as of April 1999 or at a later date.
The proper method for crediting payments made by one party for the jointly-held property expenses.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Lipsky v. Koplen, 282 A.D.2d 462, 463	Standard for determining involuntary preclusion from occupancy.	The record did not substantially support the finding that the plaintiff was involuntarily precluded from occupying the property.
Stone v. Stone, 229 A.D.2d 388	Relevant to the question of involuntary exclusion from property.	Used to assess the validity of the constructive eviction claim.
Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83	Definition and application of constructive eviction.	The court found the Supreme Court erred in confirming constructive eviction rather than addressing ouster.
Jemzura v. Jemzura, 36 N.Y.2d 496, 503	Rights of tenants in common to occupy whole premises without interfering with co-tenant's rights.	Clarified that occupancy by one tenant in common does not create liability for use and occupancy absent ouster.
Oliva v. Oliva, 136 A.D.2d 611, 612	Use and occupancy principles among co-tenants.	Supported the court’s conclusion that occupancy alone does not establish liability for use and occupancy.
Freigang v. Freigang, 256 A.D.2d 539, 540	Credit for payments made by one co-tenant for jointly held property expenses.	Authorized crediting the defendant for one-half of payments made since April 1999 without offset for use and occupancy.

Court's Reasoning and Analysis

The court reviewed the Referee's finding that the plaintiff was constructively evicted as of April 1999 and found the record did not substantially support that conclusion. It noted that the Supreme Court erred by confirming constructive eviction instead of determining whether the plaintiff was ousted from the property. The court emphasized that a tenant in common has the right to occupy the entire premises as long as the other tenant's rights are not interfered with, and mere occupancy by one tenant does not impose liability for use and occupancy on that tenant.

Since the plaintiff failed to demonstrate ouster, the court concluded that he effectively abandoned the property, leaving the defendant responsible for all expenses since April 1999. Therefore, the parties' financial contributions should be fixed as of the date the property is sold, not April 1999. The defendant is entitled to a credit for one-half of all payments made for acquisition, maintenance, upkeep, and repair, including mortgage, taxes, and insurance, since April 1999. This credit should not be offset by the value of the defendant’s use and occupancy.

Holding and Implications

The court modified the Supreme Court order by deleting the provisions confirming the Referee’s report that the plaintiff was constructively evicted as of April 1999 and that contributions be fixed from that date. Instead, it rejected that portion of the Referee’s report and directed that contributions be fixed as of the date the property is sold. The order was otherwise affirmed with costs to the appellant, and the matter was remitted for further proceedings consistent with this decision.

The direct effect is that the plaintiff is not deemed constructively evicted and is responsible for contributions through the date of sale rather than April 1999. The defendant is entitled to appropriate credits for payments made. No new legal precedent was established; the decision clarifies the application of existing principles regarding constructive eviction, ouster, and co-tenant rights in partition actions.

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ELWOOD L. CORSA III, Respondent, v. ANNE BIERNACKI, Appellant.

DECISION ORDER

ORDERED that the order is modified, on the law, by deleting the provisions thereof confirming that portion of the Referee's report which determined that the plaintiff was constructively evicted from the subject property as of April 1999 and that the parties' respective contributions for acquisition, maintenance, upkeep, and repair of the premises be fixed as of April 1999 and substituting therefor provisions rejecting that portion of the Referee's report, and directing that the parties' respective contributions for acquisition, maintenance, upkeep, and repair of the premises be fixed as of the date that the subject property is sold; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings before the Referee in accordance herewith.

The record does not substantially support the Referee's finding that the plaintiff was involuntarily precluded from occupying the subject property ( cf. Matter of Lipsky v. Koplen, 282 A.D.2d 462, 463; Stone v. Stone, 229 A.D.2d 388). We note that the Supreme Court incorrectly confirmed the Referee's determination that the plaintiff was "constructively evicted" from the property ( see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83), rather than determining whether he was ousted therefrom. In any event, 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 tenant] to also occupy the premises" ( Jemzura v. Jemzura, 36 N.Y.2d 496, 503; see Oliva v. Oliva, 136 A.D.2d 611, 612). The occupancy by one of the tenants in common in and of itself does not make that tenant liable to the other tenant for use and occupancy ( see Jemzura v. Jemzura, supra). Here, the plaintiff failed to establish that he was ousted from the property. Accordingly, since the plaintiff effectively abandoned the jointly-held property and left the defendant to pay all the expenses with respect thereto since April 1999, the parties' respective contributions for acquisition, maintenance, upkeep, and repair of the premises should be fixed as of the date the subject property is sold, and the defendant is entitled to a credit for one-half of the payments made for acquisition, maintenance, upkeep, and repair of the premises, including mortgage, taxes, and insurance since April 1999 ( see Freigang v. Freigang, 256 A.D.2d 539, 540). Any such credit should not be offset by the value of her use and occupancy ( see Oliva v. Oliva, supra).

SANTUCCI, J.P., McGINITY, SCHMIDT and ADAMS, JJ., concur.