Plaintiffs LOUIS J. PERRETTA, ANNE-MARIE ALBICOCCO, LOUIS A.

Frank Perretta had three children - plaintiffs LOUIS A. PERRETTA, JOSEPHINE HYDOCK and FRANK PERRETTA, JR. Pasquale Perretta had two children - plaintiffs LOUIS J. PERRETTA, and ANN-MARIE ALBICOCCO. Defendant

Frank Perretta, on September 3, 1993, transferred his one-quarter interest in the property to his brothers, Pasquale Perretta, Tiberio Perretta and ANTHONY PERRETTA. Thus, Pasquale Perretta, Tiberio Perretta and ANTHONY PERRETTA each became one-third owners of the premises as tenants in common. Tiberio Perretta moved into an apartment in the premises with his wife, Angelina. They died in 2008 and 2009 respectively. Angelina Perretta, prior to her death, transferred her one-third interest in the property, which she inherited from her deceased husband, Tiberio Perretta, to an irrevocable inter vivos trust, with her nephews LOUIS A. PERRETTA and Anthony Curto as trustees. Angelina Perretta's trust instrument specified that upon her death, the trustees shall transfer her interest in the subject property to Frank Perretta's children, LOUIS A. PERRETTA, JOSEPHINE HYDOCK and FRANK PERRETTA, JR. Subsequent to Angelina Perretta's death, LOUIS A. PERRETTA and Anthony Curto, as trustees, conveyed Angelina Perretta's one-third interest in the property to LOUIS A. PERRETTA, JOSEPHINE HYDOCK and FRANK PERRETTA, JR. by quitclaim deed, dated August 6, 2009. Upon Pasquale Perretta's death, on November 9, 2009, his one-third interest in the property passed to his children, LOUIS J. PERRETTA and ANN-MARIE ALBICOCCO. Therefore, at present, a one-third interest in the property is held each by: plaintiffs LOUIS A. PERRETTA, JOSEPHINE HYDOCK and FRANK PERRETTA, JR.

First, the branch of defendants' cross-motion to amend their answer is granted. "In the absence of prejudice or surprise to the opposing party, leave to amend an answer to assert an affirmative defense should be freely given where the proposed amendment is neither palpably insufficient nor patently devoid of merit (see CPLR 3025 [b]; Tomasino v American Tobacco Co., 57 AD3d 652, 653 [2d Dept 2008]; Matter of Roberts v Borg, 35 AD3d 617, 618 [2d Dept 2006])." (Carroll v Motola, 109 AD3d 629, 630 [2d Dept 2013]). "The legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt." (Sample v Levada, 8 AD3d 465, 467-468 [2d Dept 2004]). (See Carroll v Motola at 630; Maldonado v Newport Gardens, Inc., 91 AD3d 731, 732 [2d Dept 2012]; Vista Props., LLC v Rockland Ear, Nose & Throat Assoc., P.C., 60 AD3d 846, 847 [2d Dept 2009]). Defendants' proposed amendments, which amplify certain affirmative defenses and add an affirmative defense of statute of limitations with respect to plaintiffs' third cause of action for use and occupancy are palpably neither insufficient nor devoid of merit. Moreover, plaintiffs have not shown that they will be prejudiced by the amendments.

Next, "[a] person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (RPAPL 901 [1])."

Defendants do not dispute the ownership interest of the Pasquale descendant plaintiffs. With respect to their challenge to the interests of the Frank descendant plaintiffs, defendants' counsel states in his affirmation in opposition, in ¶ 22, that:

A. Perretta [in the quitclaim deed] as grantors and Trustees of the

Perretta Family Trust, the signatures placed thereon by them and the acknowledgment taken of them, fails to identify the capacity by which

said deed was issued. Instead their signatures are bare of any authority

or capacity and rather appear as if they personally were the grantor

owners which they were not.

To establish a prima facie case for sale, it must be established that the property is "so circumstanced that a partition thereof cannot be made without great prejudice to the owners." (Cadle Co. v Calcador, 702 quoting Chittenden v Gates, 18 AD 169, 173 [2d Dept 1897]). (See Shui Ying Lee v Jing Ting Lee, 79 AD3d 1123 [2d Dept 2010]). "The actual physical partition of property is the preferred method and is presumed appropriate unless one party demonstrates that actual physical partition would cause great prejudice." (Lauriello v Gallotta, 70 AD3d 1009, 1010 [2d Dept 2010]). The parties dispute whether a sale is warranted. The subject property, a four-family building, could be converted into separate condominium units. According to defendants, conversion into condominium units would significantly increase the value of the property. Presumably, the conversion of the premises into condominium units will further allow defendants to retain possession of the garden apartment. These issues will properly be before a Referee who will report to the Court whether partition may be had without great prejudice. "Whether physical partition or sale is appropriate is a question of fact for the Referee to resolve." (Hales v Ross, 89 AD3d 1261, 1263 [3d Dept 2011]). (See Lauriello v Gallotta at 1010).Therefore, a Referee will be appointed to hear and report on, among other issues, whether the property is so circumstanced that a partition cannot be made without great prejudice to the owners, pursuant to RPAPL § 901 (1). Pending a Referee's Report, plaintiffs are not entitled to use and occupancy from defendants. "Mere occupancy alone by a tenant in common does not make that tenant liable to the other tenant for use and occupancy absent an agreement to that effect or an ouster (see Misk v Moss, 41 AD3d 672 [2d Dept 2007]; Degliuomini v Degliuomini, 12 AD3d 634 [2d Dept 2004])." (McIntosh v McIntosh, 58 AD3d 814 [2d Dept 2009]). "Although actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants, the common law also recognizes the existence of implied ouster in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them." (Myers v Bartholomew, 91 NY2d 630, 633 [1998]). "To prove an ouster it is not necessary to prove a violent ejectment, or as one of the cases has it, it is not necessary to prove the party was set out by the shoulders. It may be inferred from the circumstances." (Zapp v Miller, 109 NY 51, 58 [1888]). There must be some evidence or circumstances that amount to an "ouster." The Court finds that no such circumstances exist in the instant action. It is undisputed that Frank Perretta and Pasquale Perretta [*5]voluntarily relocated from the property. There is no allegation that any of the plaintiffs attempted to access or use any part of the subject property and were prevented from doing so by defendants. Plaintiffs' allegation that defendants refused to come to terms with them regarding a management plan for the property, without more, is not an "ouster."

Accordingly, it is

ORDERED, that the motion of plaintiffs LOUIS J. PERRETTA, ANNE-MARIE ALBICOCCO, LOUIS A. PERRETTA, JOSEPHINE HYDOCK and FRANK PERRETTA, JR. for: partial summary judgment, pursuant to CPLR Rule 3212 (e), directing the partition and sale of the residential subject property at 447 Henry Street, Brooklyn, New York (Block 323, Lot 27, County of Kings); striking the affirmative defenses of defendants ANTHONY PERRETTA, JOSEPHINE PERRETTA, and ANNETTE PERRETTA; defendants ANTHONY PERRETTA, JOSEPHINE PERRETTA and ANNETTE PERRETTA to provide a complete accounting of revenues, expenses and management of the subject property; and, appointing of a Referee in furtherance of the foregoing relief, is granted; and it is further

ORDERED, that the cross-motion of defendants ANTHONY PERRETTA, JOSEPHINE PERRETTA, and ANNETTE PERRETTA for: an order granting defendants leave to amend their answer to more particularly plead certain affirmative defenses; adding an additional defense of statute of limitations, pursuant to CPLR Rule 3025 (b); and, dismissal of plaintiffs' third cause of action against defendants for their use and occupancy of the subject premises, is granted; and it is further

ORDERED, that in the Order to be Settled on Notice, there shall be a provision for the appointment of a Referee to hear and report: on the right, share or interest of each party in the property, as far as the same has been ascertained, pursuant to RPAPL § 915; whether the property is so circumstanced that a partition cannot be made without great prejudice to the owners, pursuant to RPAPL § 901 (1); if a sale of the property is necessary, ascertain the existence of any creditor not joined as a party who may have a lien against an undivided share of any party, pursuant to RPAPL § 913; and, with respect to an accounting of the sums paid and collected, including but not limited to rents, expenses, interests of creditors and the parties' contributions and withdrawals from the subject property.Plaintiffs' counsel shall Settle Order on Notice within thirty days after serving

ENTER_________________________________

J. S. C.