Plaintiff moves for an order granting partial summary judgment and ordering that the real property be sold at public auction[003]; that a referee be appointed to make such sale and to ascertain the interests, if any, of any non-party lienholders, that payment of any liens upon the subject property be made out of the purchase money and that the remaining proceeds be retained for distribution according to the direction of the court; that the referee make and file a report of sale and, after the sale is confirmed the referee issue a deed to the purchaser. Plaintiff also moves for an order requiring that the balance of the proceeds after fees, allowances and expenditures be distributed to the parties entitled thereto.

Plaintiff Eugene Mosiello and defendant Michael D'Anna are each owners in fee simple of an equal undivided one-half share of the subject real property. The premises were purchased on or about April 8, 1994. Plaintiff Eugene Mosiello alleges purchase was effectuated with funds supplied by him.^[FN1] Defendant affirms that neither plaintiff nor he placed a deposit of down-payment in connection with the purchase of the property. It is, however, clear that two mortgages were obtained: a purchase money mortgage and a construction loan from Gateway State Bank. Title to the property was taken in the names of Eugene Mosiello and Michael D'Anna. Defendant D'Anna now has [*2]

exclusive use of the premises which contains a dental office, the sole asset of the partnership. The parties never entered into a written agreement concerning their respective rights and/or liabilities concerning this property, but instead relied on a verbal agreement to enter into a partnership to practice dentistry. The parties make reference to a second verbal agreement made in 1996 to form a real estate partnership which, inter alia, made payment of the use and occupancy taxes.

Defendant Michael D'Anna cross-moves for summary judgment on his Second and Third Counter Claims seeking (a) an immediate accounting of all assets and liabilities of the partnership and (b) a dissolution of the partnership ^[FN2] and (c)equitable relief in the form of an option to purchase the subject property located at 115 Seguine Avenue, Staten Island, New York (Block 6680, Lots 1 and 26) [004].

On January 9, 2007, this motion was granted in part, insofar as this court directed a final accounting for the partnership and directed that an order be settled on notice.

Defendant Sara D'Anna, the wife of defendant Michael D'Anna, moves for an order lifting the stay [TRO] ordered in the related foreclosure action entitled D'Anna v D'Anna pending in Richmond County under Index No. 10811/2002 and a declaratory judgment as to the validity and ability to enforce the above-detailed two underlying loans secured by mortgages issued in connection with the purchase of the subject premises [005]. Defendant Sara D'Anna purchased the two underlying mortgages after defaults occurred, so as not to let the subject property go into foreclosure and public auction.^[FN3] On or about February 22, 2005 the purchase money mortgage was purchased and assigned to Sara D'Anna. There are no other liens against the properties.

Upon review of the papers submitted and after oral argument the Court finds that it cannot determine the ownership interest of the parties based on the representations set forth in the moving papers.

Accordingly, the Court having previously ordered an accounting in this matter (not yet received by the Court), motions 003 and 004 are denied without prejudice to renewal upon the filing of an updated accounting. Such accounting will ascertain the extent to which defendant(s) may have legitimate claims for amounts due from the sale of the property made in excess of his/her respective interests, such as mortgage payments and other payments for upkeep and maintenance of the subject property (see, Duffy v Duffy, 21 AD3d 928). Moreover, a partition action is statutory (see, RPAPL 901[1]), it is also equitable in nature and the court may compel [*3]the parties to do equity when adjusting the distribution of the proceeds of sale (Cook v Petito, 208 AD2d 886 [1994]; cf Berlin v Wojnarowski,AD3d).

In order to obtain summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law (CPLR 3212). Summary judgment is considered a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact (Rotuba Extruders, Inc. v Ceppos, 46NY2d223; Bank of New York v Granat, 197AD2d653). The movant must make out a prima facie showing that it is entitled to summary judgment based upon submission of sufficient evidence (Alvarez v Prospect Hospital, 68NY2d320).

The burden then shifts to the opposing party, who must "...produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim" (Zuckerman v The City of New York, 49NY2d557, 562). Mere conclusory statements, expressions

of hope or unsubstantiated allegations are insufficient to defeat the motion (Rodriguez v New York City Housing Authority, 87NY2d87; Ayotte v Gervasio, 81NY2d1062). The requirement that evidence in opposition to a summary judgment motion must be in competent and admissible form protects the meritorious motion from "frivolous defenses" (Sprung v Jaffe, 3NY2d539; Fender v Prescott, 101AD2d418).

With respect to Sara D'Anna's application to lift the stay ordered in the related foreclosure action, this court will not enter an order to vacate or modify a decision by a court of coordinate jurisdiction. Any decision relative to that should be rendered by the court hearing the related foreclosure action.

Accordingly, this motion is also denied.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify both sides of this Decision/Order.

Dated: March 30, 2007/s/

THOMAS P. ALIOTTA

J.S.C.

ASN by EVE/pt on4/2/07

John P. Gulino, P.C.

85 New Dorp Lane

Staten Island, Ny 10306

Cilmi & Associates Pllc

Att: Noah L. Pusey, Esq.

39 Broadway, 12th Fl.

New York, Ny 10006

Gravante & Looby LLP

1514 86 Street

Brooklyn, Ny 11228

Fiore & Wierzbowski, P.C.

Att: Marguerite Fiore, Esq.

623 North Railroad Avenue

Staten Island, Ny 10304