The above captioned action for divorce was commenced by Plaintiff Husband by the filing of a Summons and Complaint on August 5, 2020. Defendant Wife filed an Answer with Counterclaims on December 15, 2020. On or about January 26, 2023, Third-Party Plaintiff, L.B., filed a motion seeking to intervene into the divorce action (Mot. Seq. 006). L.B. is Defendant L.S.'s mother and Plaintiff M.S.'s mother-in-law. The motion to intervene was resolved by So Ordered Stipulation dated March 2, 2023, and Ms. B. filed her Third-Party Complaint on March 6, 2023. In sum and substance, the Third-Party Complaint sought declaratory relief related to Ms. B.'s co-ownership and legal obligations relating to the former marital home located at ** N. Boulevard, Staten Island, New York.

On or about June 24, 2025, Plaintiff Husband filed an Order to Show Cause (Mot. Seq. 011) seeking a judicial determination that each party to this action owned an equal one third (33%) share of ** N. Boulevard. Plaintiff further moved to dismiss the Third-Party Complaint on both procedural and substantive grounds. On September 11, 2025, Third-Party Plaintiff cross moved (Mot. Seq. 012) for an Order determining that she owned a 50% share of the property and that the remaining 50% was owned by Husband and Wife as tenants by the entirety. Third-Party Plaintiff also sought a judicial determination that she did not "have a financial obligation for repayment of the mortgage" associated with the property. On September 15, 2025, Defendant Wife also cross moved (Mot. Seq. 013) asserting various requests for relief and joining in aspects of both parties' motions.

Motions 011, 012 and 013 were decided on the record of October 15, 2025 and resolved by Settled Order dated January 7, 2026. Therein, as relevant to the present Decision, this Court found that each party owns an equal 33% percent interest of ** N. Boulevard. This Court then dismissed the remaining causes of action asserted in the Third-Party Complaint, but granted Third-Party Plaintiff leave to file an Amended Complaint asserting a cause of action seeking a partition of the property. All other aspects of motions 011, 012 and 013 were referral to trial.

On or about November 1, 2025, Third-Party Plaintiff filed a proposed Amended Complaint that became effective upon the signature of the January 7th Order. Pursuant to her Amended Complaint, Third-Party Plaintiff sought the partition and sale of ** N. Boulevard together with several judicial declarations regarding her rights and obligations in relation to that property upon sale. Plaintiff Husband filed an Answer to the Amended Complaint on November 17, 2025. Defendant Wife filed her Answer to the Amended Complaint on November 14, 2025.

A bench trial of the above captioned actions was commenced on November 17, 2025. Upon commencement, all parties agreed that it would better serve the parties, and judicial economy, to sever the third-party action from the divorce and address it in a separate decision, as the divorce trial would be protracted and would address issues that did not involve Third-Party Plaintiff. At trial, Plaintiff Husband was represented by Michael Coscia Esq., Defendant Wife was represented by Adelola Sheralynn Dow Esq., and Third-Party Plaintiff was represented by Maria Coffinas Esq.

The Third-Party Action was tried over the course of two days, November 17, 2025, and November 18, 2025. Third Party Plaintiff testified on her own behalf and introduced five [*2]documents into evidence (TPP #1-5). Defendant Wife did not call any witnesses, or submit any evidence, but participated in cross examination. Plaintiff Husband testified on his own behalf and introduced approximately forty documents into evidence. At the close of evidence on the third-party action the parties entered into a schedule for the submission of written summations. Summations were received from all parties on December 12, 2020. The divorce trial between Husband and Wife is ongoing before this Part.

A person who owns a parcel of real property as a joint tenant or tenant in common may maintain an action for the partition of that property and to compel its sale. See RPAPL §901; see also Goldberger v. Rudnicki, 94 AD3d 1048 (2d Dept. 2012). The right to partition is not absolute, however, and the remedy is subject to the equities between the parties. See Paquet v. Murphy, 242 AD3d 1214 (2d Dept. 2025). Moreover, before a partition and sale can be directed, a determination must be made as to the rights, shares, and respective interests of the parties. See Clarke v. Clarke, 227 AD3d 659 (2d Dept. 2024). Although of statutory construction, a partition action is equitable in nature and the court may compel parties to do equity between themselves by adjusting the distribution of the proceeds of sale. See Turrisi v. Severino, 77 AD3d 914 (2d Dept. 2010).

Under New York Law, the common language phrase "mortgage" generally relates to two separate documents, a promissory note encompassing an obligation to repay a loan, and a security interest held by the lender against real property offered as collateral. See e.g. Deutsche Bank Trust Co. Ams. V. Vitellas, 131 AD3d 52 (2d Dept. 2015). It is the promissory note that creates an enforceable promise to pay the loan debt. See Commonwealth Land Tit. Ins. Co. v. Prado, 176 AD3d 1164 (2d Dept. 2019). The mortgage only serves as a security interest and does not exist independently of the underlying debt or obligation. See FGB Realty Advisors, Inc. v. Parisi, 265 AD2d 297 (2d Dept. 1999); see also Reale v. Tsoukas, 146 AD3d 833 (2d Dept. 2017). A mortgage instrument is not independently enforceable as a debt. See Weiss v. Phillips, 157 AD3d 1 (1st Dept. 2017); see also U.S. Bank N.A. v. Fitzmaurice, 2017 NY Slip Op 30866 (Sup. Ct. Suff. Cty. 2017). As such, the security interest provided by a mortgage cannot confer liability on the underlying note to a party that would not be otherwise obligated as a "borrower" under that note. See e.g. US Bank v. Hasan, 986 N.Y.S.2d 869 (Sup. Ct. Kings Cty. 2014); see also U.S. Bank N.A. v. Gordillo, 2018 NY Slip Op 30716(U) (Sup. Ct. Suff. Cty. 2018).

As it relates to the present parties, the property located at ** N. Boulevard was initially obtained by Defendant Wife and Third-Party Plaintiff as tenants in common by deed dated May 28, 1999. The funds to purchase the property were obtained via a mortgage loan and a cash down payment from Third-Party Plaintiff in the amount of $127,000. At the time of purchase, the property was improved by a single-story home. Husband and Wife were married on September 9, 2000, and they moved into the property shortly thereafter. They cohabited in the home until Husband relocated upon the commencement of the divorce action in 2020. Third-Party Plaintiff has never resided in the home. During their exclusive use and occupancy of the property [*3]Husband and Wife were solely responsible for the payment of the mortgage and all carrying charges related to the home. This Court credits Third-Party Plaintiff's testimony that the parties agreed that she would have no responsibility to maintain the property or pay the mortgage during their occupancy. In return, Husband and Wife were permitted to live in the property without paying rent to Third-Party Plaintiff and were further allowed to collect any rental income obtained from the property.

When Husband and Wife took possession in September 2000 the property was encumbered by a mortgage, and the promissory note associated with that mortgage obligated Wife and Third-Party Plaintiff. On or about December 27, 2004, this first mortgage was "cash out" refinanced with approximately $57,000 in cash paid to Wife. In or around June 2007 Husband and Wife decided to undertake a major renovation to the property. In furtherance thereof, Husband entered into a construction contract with "Madonia Development Corporation" for the renovation of the property including the addition of a second floor and an inground pool. The initial contract price was $429,000 although Husband credibly testified that by the time the work was completed the cost had ballooned to approximately $850,000. Notably, at the time Husband signed the construction contract, he was not an owner of the property. This Court credits Third-Party Plaintiff's testimony that the decision to renovate the property was made without meaningful consultation and that she had no input on any aspect of the construction. However, the Court credits Husband's testimony that Third-Party Plaintiff was aware that the renovations were taking place and that she did not object to the same.

On or about August 17, 2007, Wife and Third-Party Plaintiff agreed to add Husband to the deed of the property for no consideration. Husband testified that he would not agree to oversee and fund the renovations unless he had an ownership interest in the property. At the time of transfer the property was worth approximately $570,000. As a result of this transfer Husband was granted, in essence, a inter vivos gift equal to one third of the equity in the property at the time of transfer. See In re Estate of Szabo, 10 NY2d 94 (1961); see also McCarthy v. Kaminski, 131 AD3d 950 (2d Dept. 2015). On the same date of transfer the existing mortgage was satisfied by a Consolidation Extension and Modification Agreement ("CEMA"). This Court credits Third-Party Plaintiff's testimony that she was promised by her daughter and son-in-law that she would have no obligation to repay this new loan. Moreover, it is undisputed that Ms. B. did not personally sign the CEMA promissory note, but that her name was signed to the note by Wife, via power of attorney.^[FN1]

On or about March 23, 2010, the CEMA was refinanced again upon an application signed by Husband and Wife. This fourth mortgage had a principal note balance of $543,000 (See TTP Ex. 4). Husband and Wife once again reassured Third-Party Plaintiff that she would be obligated under the promissory note. The Note was signed by Husband and Wife but was not signed by Ms. B. either in her individual capacity, or by Wife via power of attorney. Moreover, Husband and Wife where the only parties who obtained any of the net "cash out" proceeds from the refinance which were utilized to fund the ongoing renovations to the property.

The cash out proceeds from the 2007 and 2010 mortgages were utilized by Husband and Wife to improve the property during a time in which they enjoyed exclusive use and occupancy [*4]of the same. In addition to the funds withdrawn from the equity in the property Husband also testified that he and his Wife personally invested approximately $450,000 of marital funds into the renovation. Third-Party Plaintiff claims that she did not contribute to the renovations, but that she did loan $20,000 to Husband for the installation of the inground pool, of which she claims only $1,000 has been paid back. At no time relevant to this proceeding did Third-Party Plaintiff occupy the home, pay bills associated with the property or collect any rent. Consistent with the terms of the 2010 Promissory Note and the parties' agreement, Third-Party Plaintiff was never asked to contribute to the monthly payment of the mortgage loan. However, as argued by Husband, it is undisputed that Ms. B.'s signature appears on the mortgage levied against the property as a security interest by the lender. Her name was signed to the mortgage instrument by Wife, with power of attorney (See Pl Ex. 46).

As a preliminary manner, this Court finds that Third-Party Plaintiff has established her entitlement to a partition and compelled sale of the property located at ** N. Boulevard, Staten Island, New York. See RPAPL §901; see also Goldberger v. Rudnicki, 94 AD3d 1048, 2d Dept. 2012. However, before the Court can issue a judgment of partition and order a sale, the parties' respective rights, obligations and interests must be determined. See Wardally v. Wardally, 186 AD3d 531 (2d Dept. 2020). It also must be determined if there are any creditors with liens on the property and whose obligation it is to satisfy them. See RPAPL §913.

By Order dated January 7, 2026, this Court has already determined that each party to this action (Husband, Wife and Third-Party Plaintiff) owns an equal 33% percent interest of the property located at ** N. Boulevard. The primary contention between the parties is whether the "mortgage debt" associated with the property should be allocated the same way, or whether it should be divided equitably between Husband and Wife in the underlying divorce proceeding, with Third-Party Plaintiff bearing no responsibility for the debt. Husband argues that Third-Party Plaintiff is liable for one third of the "mortgage" because her name was signed to the same by her daughter with power of attorney (See Pl. Ex. 46). However, contrary to Husband's position, it is not the mortgage which creates indebtedness, but the underlying promissory note. See Copp v. Sands Point Marina, Inc., 17 NY2d 291 (1966); see also Commonwealth Land Tit. Ins. Co. v. Prado, 176 AD3d 1164 (2d Dept. 2019). The mortgage is merely a security interest held by the lender which allows for the remedy of foreclosure in the event the underlying debt is unpaid. See Arch Bay Holdings, LLC v. Albanese, 146 AD3d 849 (2d Dept. 2017). Despite any ambiguous language in the mortgage instrument reiterating that the "borrowers" are liable for payments under the note, the mortgage instrument itself does not constitute an independently enforceable contract for the repayment of the loan. See Bank of NY v. Silverberg, 86 AD3d 274 (2d Dept. 2011); see also U.S. Bank N.A. v. Fitzmaurice, 2017 NY Slip Op 30866 (Sup. Ct. Suff. Cty. 2017). As only Husband and Wife signed the Promissory Note dated March 23, 2010, they are the "borrowers" who are legally responsible for the repayment of the debt associated therewith. Accordingly, upon the sale of the property, Third-Party Plaintiff will not be responsible for the repayment of any share of the mortgage loan and shall be entitled to a one third (33%) share of the gross sale proceeds calculated before the mortgage is satisfied. The mortgage will be satisfied at closing with the allocation of responsibility for repaying the same to be determined between Husband and Wife in the underlying matrimonial action.

In addition to the distribution of the mortgage loan, Third-Party Plaintiff seeks an unequal distribution of the net equity in the property to credit her for her "separate contribution" to the initial purchase of the property. Third-Party Plaintiff credibility testified that when she originally purchased the property with her daughter in 1999, she contributed $127,000 as a down payment to the purchase price. Similarly, Husband seeks an unequal distribution of the net proceeds to the marital estate on the basis that he and Wife paid for all of the carrying charges, maintenance expenses, and 100% of the mortgage during their exclusive use and occupancy from September of 2000 until the commencement of divorce proceedings in 2020. Husband further claims that over $450,000 of marital funds were paid "out of pocket" towards the complete renovation of the property including the addition of a second floor.

Partition is an equitable remedy and the court has the authority to adjust the rights of the parties so that each receives his or her fair share of the property. See Brady v. Varrone, 65 AD3d 600 (2d Dept. 2009). Credits may be awarded for down payments, improvements, repairs, and mortgage payments made in excess of a party's respective ownership interest in the property. See Quattrone v. Quattrone, 210 AD2d 306 (2d Dept. 1994); Gasko v. Del Ventura, 96 AD2d 896 (2d Dept. 1983), Coston v. Greene, 2018 NY Slip Op 32343 (Sup. Ct. Kings Cty. 2018).

After considering the claims raised by all parties in equity, this Court finds that no party has met their burden of proof to establish that an unequal distribution of net proceeds is warranted under the circumstances of this case. While it is undisputed that Third-Party Plaintiff contributed $127,000 as a down payment for the property, Husband correctly argues that she gifted one half of that equity to Wife upon purchase, and then a third to him when his name was added to the deed without consideration in 2007. The requirements for an inter-vivos gift are (1) an intention on the part of the donor to make a transfer without consideration, (2) delivery to the donee, and (3) acceptance. See In re Estate of Szabo, 10 NY2d 94 (1961); see also In re Brietman, 274 AD2d 582 (2d Dept. 2000). Those elements are satisfied here by a transaction that took place over 19 years ago, negating any claim for an origination credit.

Husband has also failed to establish his entitlement to a quantifiable credit in relation to the renovation of the property. The renovation of the home, while substantial, was conducted without meaningful consultation or consent from Third-Party Plaintiff and was primarily funded by utilizing the equity that was gifted to the marital estate (see above). While Husband claims that an additional $200,000 to $450,000 of marital funds were utilized for renovations, this figure is an unsupported approximation. Even if the Court were to credit Husband's testimony, he has failed to meet his burden of establishing the commensurate increase in value of the property attributable to those improvements. See Karas-Abraham v. Abraham, 69 AD3d 428 (1st Dept. 2010); see also M.G. v. D.G., 46 N.Y.S.3d 475 (Sup. Ct. Rich. Cty. 2016).

To the extent that Husband seeks a credit for the payment of the mortgage and carrying charges related to the property, it has been determined herein that Third-Party Plaintiff is not obliged to pay the mortgage, as she was not a borrower on the promissory note. In addition, Husband and Wife enjoyed the exclusive right to enjoy the improvements to the home and to collect any rental income derived therefrom. As they were the sole occupants of the home, they were in control of, and responsible for the payment of their own mortgage and carrying charges and thus are not entitled to a credit for the same in equity. In any event, while Husband's summation raises a general argument in support of his claimed credits and an unequal distribution, he concludes with a request that this Court "award each party 1/3 of the net proceeds of sale after the payment of all ordinary and customary closing costs."

Finally, Third-Party Plaintiff raises a claim in equity for a $19,000 credit relating to money that she loaned to Husband and Wife for the installation of an in-ground pool on the property. While it is undisputed that the parties did not prepare a promissory note memorializing the transaction, and no party established clear terms of repayment at trial, Husband admitted that it was always their intention to pay Third-Party Plaintiff back for the funds provided. In fact, Husband credibly testified that he made a single $1,000 installment payment reducing this marital debt from $20,000 to $19,000. Accordingly, this Court finds that Third-Party Plaintiff is entitled to a distribution of $19,000 out of the net proceeds from the sale to repay this marital debt. This debt shall be allocated 50% to Husband and 50% to Wife as they both benefitted from the use of the pool during their exclusive use and occupancy of the property and the burden of repaying marital debt should be equally shared in the absence of countervailing factors. See Westereich v. Westereich, 169 AD3d 972 (2d Dept. 2019).

For the detailed reasons set forth above, Third-Party Plaintiff's cause of action for a partition and sale of the property located at ** N. Boulevard, Staten Island, New York is granted. The property shall be sold by a Part 36 Broker to be selected by the Court via separate order of appointment at a price to be determined by that broker after a market analysis and after consultation with counsel for all parties.

The costs associated with the broker and the usual and customary closing and transfer costs associated with the sale of real property shall be shared equally between the three parties (33% each) to be paid out of the gross proceeds from the sale. The mortgage encumbering the property shall then be satisfied and allocated to Husband and Wife's marital 66% share of the gross equity with the allocation between them to be determined in conjunction with the divorce trial. Third-Party Plaintiff shall then be entitled to a payment at closing equal to one third (33%) of the proceeds of the sale after usual and customary expenses and closing costs are deducted, but calculated before the satisfaction of the mortgage, as it has been determined that Third-Party Plaintiff is not obligated to pay any portion of the same. Third-Party Plaintiff shall also be entitled to a payment at closing of $19,000 to satisfy the marital debt associated with the pool, allocated equally between Husband and Wife as set forth above.

After the above payments are satisfied, the remaining net proceeds from the sale shall be deposited into the escrow account of the Part 36 Broker unless the parties agree in writing to a different escrow agent. The funds shall remain in escrow pending further order of this Court, or so-ordered agreement of the parties. This Court to declines to opine upon the payment of capital gains taxes and rather directs that that same be paid by all parties obligated to do so in accordance with the applicable tax laws.

Any issue raised by any party hereto in conjunction with the third-party action, whether by claim or counterclaim, but not specifically addressed herein are hereby denied. This constitutes the Decision and Order of the Court after trial.