The following papers numbered 1 to 15 were read on this motion by the defendant, ROMONA M. NUNEZ, for an order pursuant to CPLR 4403 and Court Rule 202.45 confirming in part and rejecting in part the findings, conclusions and recommendations of Referee Dominic A. Villoni:

Papers Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 6

Affirmation in Opposition-Affidavits...................7 - 12

Reply affirmation.....................................13 - 15

This is an action commenced by plaintiff, Sandra Garcia, in October 2009, seeking partition of a single family home located at 86-27 98th Street, Woodhaven, New York. The plaintiff and defendant own the premises as joint tenants with right of survivorship.

By memorandum decision dated June 8, 2011, plaintiff's motion for summary judgment on its cause of action for partition and sale was granted to the extent that a referee was to be named to ascertain and report on the rights, shares and interests of the parties in the premises and whether there are any creditors with liens upon the undivided share or interest of any party, and to take an account of the rents, profits and expenses of the property pursuant to RPAPL § § 911 and 913. [*2]

By order dated August 17, 2011, this Court appointed Dominic A. Villoni, Esq. to ascertain the rights of the parties as set forth above. Referee Villoni submitted his report on September 5, 2013. In his report he states that at a settlement conference which took place on June 21, 2012, the parties waived their right to a formal hearing and consented to the referee making his findings, conclusions and recommendations upon the submission of legal argument and documentary evidence.

In his report dated September 5, 2012, the Referee found that the parties purchased the subject property as joint tenants with right of survivorship on August 4, 2000. He states that each party owns an undivided one-half interest in the premises. Each party however, claimed in addition to their 50 per cent interest, credit for payments allegedly made for the downpayment, mortgage, real estate taxes, capital improvements and miscellaneous personalty. Although the Referee states that there are no existing mortgages and/or liens of any creditors, the parties agree that there is in fact an existing mortgage on the property and the report should be corrected in that respect.

The parties lived together in the premises from August 24, 2000 through October 31, 2008. In October 2008, Ms. Garcia vacated the premises. On July 27, 2009, in settlement of a Family Offense Petition commenced by Ms. Nunez in Family Court, Ms. Garcia agreed she would not occupy the premises, and Ms. Nunez agreed that she would be responsible for paying the mortgage.

With respect to the downpayment, the Referee states that Ms. Garcia claims that each party contributed one-half of the downpayment in the sum of $41,852.00. However, Ms. Nunez claims that she paid the entire downpayment. The Referee held, based upon the evidence submitted, including certain checks paid from Ms. Nunez's account which were drawn contemporaneous to the contract and totaled $41,852.00, that Ms. Nunez established that she provided the entire downpayment, and as such is entitled to a credit of that amount before division of the gross proceeds. He found that the checks submitted by Ms. Garcia, which were drawn from her account in 2002, two years after the closing, were not shown to be related to the downpayment.

Ms. Nunez also claims that because she paid the mortgage as well as the insurance premiums and property taxes since the time Ms. Garcia left in 2009, that she is entitled to a 50 per cent credit for those payments. The Referee found that pursuant to the Family Court stipulation, Ms. Nunez agreed to pay the mortgage in exchange for exclusive occupancy of the premises. The Referee found that because Ms. Nunez had agreed to pay the mortgage under [*3]the terms of the Family Court stipulation, she was therefore also required to pay the insurance and property taxes during the time that Ms. Garcia was out of possession. He found that Ms. Nunez was not entitled to a credit for those payments as she had sole possession of the premises and the mortgage, insurance and tax payments were therefore made for her sole benefit. The Referee also found that Ms. Garcia was not entitled to credits for Ms. Nunez's use and occupancy after she left the premises absent an agreement to that effect or an ouster. As Ms. Garcia stipulated to allow Ms. Nunez to occupy the premises, the Referee found Ms. Garcia was not entitled to credit for use and occupancy.

The Referee also denied Ms. Garcia's claim for credit for personalty in the premises stating that the partition action only involves the real property and the claim for credits for personalty would involve a separate plenary proceeding.

With respect to rentals at the premises, Ms. Garcia alleges that Ms. Nunez rented out the basement apartment after she left and claims she is entitled to 50 per cent of the rental income. The Referee states no evidence was submitted by either party on that issue and he also states that the basement apartment was illegal. He concluded that as the basement apartment was illegal the court has no jurisdiction to enforce the claim for rent. In any event he states that Ms. Garcia failed to provide proof that Ms. Nunez earned any rent from the property.

Ms. Garcia also claimed a credit for capital improvements based upon an affidavit from her brother stating that Ms. Garcia paid her brother $20,000 for work to the kitchen, attic, hallway and bathroom. However, the Referee gave no credit to Ms. Garcia for said improvements finding that plaintiff failed to produce evidence that she made a payment of $20,000. Ms. Garcia also made a claim for $6,377.09 for the purchase of kitchen cabinets in 2004 for which she paid using a Sears credit card. The Referee found the claim was not established because there was no evidence that the cabinets were purchased for the subject premises. He also states that Ms. Garcia's claim of $4,500 for aluminum siding was not established through evidence of canceled checks or receipts and was supported only by a contract. Ms. Garcia also claimed that while in Puerto Rico she purchased two windows for the home at a cost of $2,100.00. However, the Referee denied that claim stating that the evidence submitted was not definitive as to whether the purchase was made for the premises in New York.

Ms. Garcia also claims a credit for court costs, Referee's costs and survey title search costs which totaled $1,440.88. The referee held that those costs should be borne equally by each party.

Mr. Villoni also found that a Referee should be appointed by the court for the purpose of effecting a sale of the property at public auction and distributing the proceeds in accordance with his findings. The Referee also requests a fee for the services provided by him in this matter.

By motion dated October 4, 2013, defendant Nunez moves pursuant to CPLR 4403 to confirm certain portions of the Referee's report and seeks an order also rejecting and modifying certain provisions. Ms. Nunez disputes the Referee's conclusion that because she was required to pay the mortgage pursuant to the Family Court stipulation that she was also responsible for the taxes and insurance during the time Ms. Garcia was out of residence. She argues that her agreement to pay the mortgage does not mean she was solely responsible for all carrying charges since November 1, 2008, especially in view of the fact that she was never awarded exclusive possession of the premises (citing Degliuomini v. Degliuomini, 45 AD3d 626 [2d Dept. 2007][absent an ouster, tenants-in-common equally bear the costs incurred in maintaining the property] Johnston v Martin, 183 AD2d 1019 [3rd Dept. 1992]). Therefore, Ms. Nunez requests that she be credited with 50 per cent of the payments made by her for mortgage, taxes and insurance after Ms. Garcia left the premises.

Defendant also disputes the Referee's finding that there is no mortgage on the property in that the complaint states that the mortgage had a principal balance of $200,000. Defendant also disputes the Referee's findings that the parties should bear the cost of the Referee's fee and court costs equally.

In opposition, Ms. Garcia alleges that since the time she left the premises on October 31, 2008, Ms. Nunez has been receiving rental income from the basement apartment and Ms. Garcia has not received her share of the rental income. Therefore Ms. Garcia seeks a credit of 50 per cent of the rental income.

Ms. Garcia argues that the Referee correctly found that Ms. Nunez is not entitled to a credit for the mortgage payments she made after Ms. Garcia left the premises, based upon the Family court order and based upon the fact that she was forced out by Ms. Nunez. Ms. Garcia also contends that the evidence shows that she paid $20,000 for remodeling the premises, that she paid $6,350.09 for kitchen cabinets for the house, that she paid $4,500 for installment of aluminum siding at the premises, and that she paid $2,100.00 for windows she purchased for the house which were shipped from Puerto Rico. She also disputes that Ms. Nunez is entitled to the return of the downpayment arguing that the equity [*4]in the premises should be divided equally between the parties. Ms Garcia also argues that she is entitled to recover the value of her personalty which she left in the premises and that she is entitled to recover for court costs and for the Referee's fee.

Upon review and consideration of the defendant's motion to confirm the Referee's report in part and reject the report in part, the plaintiff's affirmation in opposition, and the defendant's reply thereto, this court finds as follows:

This court confirms that branch of the Referee's report finding that Ms. Nunez established that the entire downpayment of $41,852 came from her funds. This Court agrees that the evidence submitted by Ms. Garcia did not establish that the monies withdrawn from her account two years after the closing were related to the downpayment. Therefore, Ms. Nunez is entitled to $41,852.00 from the gross proceeds before division of the proceeds of sale.

With respect to mortgage, insurance and property tax payments made by Ms. Nunez, this court finds that Ms. Nunez is entitled to reimbursement for 50 per cent of the amounts paid for property insurance and property taxes during the time that Ms. Garcia was not living in the premises. Although Ms. Nunez stipulated to pay the mortgage during that period and did have the benefit of sole use of the premises, the courts have held that absent an agreement to the contrary and absent an ouster, tenants-in-common equally bear the costs incurred in maintaining the property (see Degliuomini v. Degliuomini, 45 AD3d 626 [2d Dept. 2007]). Here, there was no ouster as the parties stipulated that Ms. Garcia would vacate the premises in consideration of Ms. Nunez paying the mortgage. Therefore, this court finds that Ms. Nunez is entitled to be reimbursed for 50 per cent of the real estate taxes and property insurance she paid from the date Ms. Garcia vacated the premises. Further, as there was no ouster, Ms. Nunez is not liable to Ms. Garcia for use and occupancy fees (see Misk v Moss, 41 AD3d 672 [2d Dept. 2007][while the defendant, a tenant-in-common of the real property with the plaintiff, did occupy the entire premises, that mere occupancy alone did not make her liable to the plaintiff cotenant for her use and occupancy absent an agreement to that effect or an ouster of the plaintiff]).

In all other respects the report is confirmed. This court agrees that Ms. Garcia dd not provide proof of rental income allegedly collected by Ms. Nunez. In addition, this court agrees with the findings of the Referee that the evidence submitted by Ms. Garcia was insufficient to prove that she made payments for [*5]the capital improvements claimed by her or that the claimed purchases were actually purchased for use in the subject

premises. This Court also confirms that portion of the report which found that court costs and other expenses in the amount of $1,440.88 should be borne equally by the parties.

Lastly, the Referee shall be entitled to a fee $5,000 for services rendered to date, the cost of which shall be borne equally by the parties.

Settle order on notice, appointing Dominic A.

Villoni, Esq. as Referee for the purpose of selling the premises at public auction and distributing the proceeds in accordance with his report as modified by this Court. As stipulated to by the parties, the minimum sale price for the property at the auction shall be $399,000.

Notify counsel and Referee Villoni.

Dated: January 16, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.