Krzeminski v McQuillan

Supreme Court, Westchester County

Decided on July 6, 2026

Index No. 50130/2026

William J. Giacomo, J.

This is an underlying partition action for sale of property located at 146 Grove Street, Tarrytown, New York 10591 ("property"). Plaintiff Kevin Krzeminski, acting pro se, moves for an order, pursuant CPLR 3211 (b), striking three of defendant Janine McQuillan's affirmative defenses and striking two counterclaims.

Papers Considered NYSCEF Doc. No. 6, 7, 11

1. Notice of Motion/Memorandum of Law

2. Memorandum of Law in Opposition

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff commenced this action with the filing of a summons and complaint on February 4, 2026. The complaint states that plaintiff and defendant hold title to the property as joint tenants with right of survivorship, each owning an equal undivided fifty percent interest in the property. The [*2]property is a single family residence. Both parties have held title to the property since 2014. Plaintiff is requesting the Court direct the partition of the property pursuant to RPAPL Article 9.

The complaint sets forth alleged grounds for partition by sale of the property, including the allegation that the parties have irreconcilable differences regarding the ownership, management and use of the property, among other things. Further, the exclusive occupation of the property by defendant allegedly deprives plaintiff of his right to use and enjoy his ownership interest in the property. Plaintiff is requesting that a referee be appointed to determine the reasonable rental value of the property for the period that defendant has allegedly been exclusively occupying the property. The complaint also requests that a referee be appointed to conduct an accounting of all contributions, improvements and expenses related to the property and to determine the amounts owed between the parties.

Defendant filed an answer with counterclaims on March 2, 2026. Defendant denies that partition by sale is presently equitable or appropriate. In relevant part, defendant alleges that there are pending proceedings in Westchester County Family Court including a family offense petition as well as custody and support petitions. Further, the property serves as the residence of the minor child of the parties. As relevant here, the twelfth affirmative defense, unclean hands, alleges that plaintiff voluntarily vacated the property and now seeks equitable relief while failing to contribute equitably. The thirteenth affirmative defense alleges that an equitable adjustment is required to account for all mortgage payments and child-related expenses, among other expenses. The fourteenth affirmative defense states that defendant is entitled to equitable credit for providing housing to the parties' minor child.

Defendant asserts three counterclaims. The first counterclaim, equitable accounting, alleges that defendant has paid substantial sums towards the property and is entitled to an accounting and credit prior to any distribution of proceeds. In the second counterclaim, constructive trust/equitable adjustment, defendant alleges that equity requires adjustment of the parties' interest prior to any sale, as the property was acquired as a family residence. In the third counterclaim, defendant requests a stay of the partition action pending resolution of the Family Court proceedings.^FN1

Instant Motion

Plaintiff now moves to dismiss the twelfth, thirteenth and fourteenth affirmative defenses and the first and second counterclaims. According to plaintiff, he did not voluntarily vacate the property but was excluded by a temporary order of protection issued by the Family Court. Plaintiff also argues that any credits for utilities and child related expenses, including housing for the minor child, are not property contributions under the RPAPL and the affirmative defenses and counterclaim seeking credits for those contributions should be stricken. Finally, according to plaintiff, the counterclaim seeking a constructive trust should be stricken as constructive trust is not a remedy available in partition actions.

In opposition, defendant argues that her affirmative defenses and counterclaims should not be dismissed at the pleading stage as they raise equitable issues concerning the parties' respective interest in the property. Further, according to defendant, caselaw is clear that a constructive trust may be imposed in the context of a family real estate dispute.

Notably, defendant contends that many of plaintiff's cited legal authorities do not correspond to valid caselaw. Defendant claims that she had to expend time and expense responding to these [*3]arguments, most of which lack a reasonable legal basis. As a result, defendant is seeking sanctions against plaintiff in the form of reasonable attorneys' fees and costs incurred in responding to this motion.

DISCUSSION

Dismissal

Pursuant to CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the defenses are without merit as a matter of law. Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 (2d Dept 2006). Further, "a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed." Warwick v Cruz, 270 AD2d 255, 255 (2d Dept 2000). Courts have held that "if there is any doubt as to the availability of a defense, it should not be dismissed." Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 (2d Dept 2008).

Action for Partition

"Under New York law, joint tenancies may be severed by the court-ordered partition of the property that adjusts the rights of the parties and permits its sale if it appears that a partition cannot be made without great prejudice to the owners." Trotta v Ollivier, 91 AD3d 8, 12-13 (2d Dept 2011); RPAPL 901 [1]. "The equitable remedy of partition may only be sought by a person holding or possessing the real property as a joint tenant or tenant in common." Trotta v Ollivier, 91 AD3d at 13. "The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties." Tsoukas v Tsoukas, 107 AD3d 879, 880 (2d Dept 2013).

Three Affirmative Defenses and the Counterclaim alleging Equitable Accounting

An accounting is also necessary to ascertain the parties' interests in the property "ince an accounting is a necessary incident" of a partition and sale. Khotylev v Spektor, 165 AD3d 1088, 1090 (2d Dept 2018); (internal quotation marks omitted); see also Donlon v Diamico, 33 AD3d 841, 842 (2d Dept 2006) ("Prior to the entry of an interlocutory judgment directing the sale of the subject property, an accounting must be made of the income and expenses of the property, including but not limited to insurance costs, taxes, rents, and maintenance costs").

Plaintiff argues that certain affirmative defenses and one counterclaim should be dismissed as defendant improperly seeks an accounting and credit for child related expenses, which are not subject to this partition action. Here, however, defendant primarily alleges that she made substantial financial and nonfinancial contributions to the acquisition, preservation, maintenance and improvement of the property. Further, there is a pending matter in the Family Court which may affect the custody and support arrangement of the parties' minor child who resides at the property. Courts have held that a defense should not be stricken where there are "triable issues of fact." Jacob Marion, LLC v Jones,168 AD3d 1043, 1045 (2d Dept 2019). Under the circumstances, at this motion to dismiss stage, questions of fact remain regarding the parties' respective contributions, rights and interests in the property.

In addition, while it is well settled that the Family Court has jurisdiction over the child-support matters, Courts have held that "equities of the co-tenants may arise from a great variety of circumstances, it follows that the assertion of these equities necessarily introduces into partition suits a great variety of issues." Cruz v Cruz, 213 AD3d 805, 806 (2d Dept 2023) (internal quotation marks omitted). Specifically, Courts have recognized child-related issues when considering a [*4]partition action. See e.g. Stressler v Stressler, 193 AD2d 728, 728 (2d Dept 1993) ("Since the parties' unemancipated son, who is under the age of 21 years, still resides in the subject residence, we conclude that at the present time the equities favor dismissal of the former husband's partition action").

Accordingly, the branch of plaintiff's motion seeking to dismiss these affirmatives defenses and counterclaim, is denied.

Counterclaim Seeking a Constructive Trust/Equitable Adjustment

Citing Rowe v Kingston (93 NY2d 721, 724 [1999]), plaintiff argues that the second counterclaim should be stricken as a constructive trust is not a remedy available in a partition action. At the outset, the citation above does not correlate to the case. Further, plaintiff misstates the holding. In Rowe v Kingston, cited correctly herein as (Rowe v Kingston, 94 AD3d 852, 853 [2d Dept 2012]), the Court held that a plaintiff satisfied the elements necessary to impose a constructive trust in a property dispute between relatives and reiterated that a constructive trust is an equitable remedy. Accordingly, the branch of plaintiff's motion seeking to dismiss this counterclaim is denied.

Sanctions

Pursuant to 22 NYCRR 130.1.1 (a), in pertinent part, the court, in its discretion, may award costs and reasonable attorneys' fees resulting from frivolous conduct. "Conduct is frivolous within the meaning of 22 NYCRR 130-1.1, inter alia, where it is completely without merit in law or is undertaken primarily . . . to harass or maliciously injure another. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct." Yinuo Yin v Xiao Feng Qiao, 203 AD3d 996, 997-98 (2d Dept 2022) (internal quotation marks and citations omitted).

"When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent." Matter of Kover, 134 AD3d 64, 74 (1st Dept 2015), citing 22 NYCRR 130-1.1 (c).

In defendant's opposition brief, defendant requests the Court award her the reasonable attorney's fees and costs incurred in responding to this motion. According to defendant, plaintiff's motion relies on authorities that do not correspond to reported decisions and also claims that plaintiff misstates the governing law.

This Court has independently verified that some of plaintiff's caselaw is either incorrectly cited or nonexistent and that plaintiff misstates some of the holdings in the caselaw. While the Court is mindful of plaintiff's pro se status, his submissions have wasted both the Court and counsel's time. Courts have imposed sanctions on pro se litigants for citing to nonexistent cases. See e.g. Matter of Julien v Arthur, 2026 NY App Div Lexis 3503, *14 (2d Dept 2026) (internal citations and quotation marks omitted) (monetary sanction of $250 imposed on pro se litigant for citing to one nonexistent case and the Court held that "[t]he failure to verify even a single GenAI citation to a fictitious case may warrant the imposition of sanctions to account for the unnecessary waste of resources of the Court and of opposing parties. Further, the mere fact of a party's pro se status does not excuse the party's failure to check the legal citations presented to the Court").

Nonetheless, in its discretion, the Court declines to impose sanctions at this juncture. However, plaintiff is advised that any future submissions containing inaccurate legal authorities may warrant the imposition of sanctions.

All other arguments raised on this motion and evidence submitted by the parties in [*5]connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff's motion to strike certain affirmative defenses and counterclaims is denied.

The parties are reminded of their compliance conference scheduled for October 19, 2026 at 10:00 a.m. in Courtroom 102.

Dated: July 6, 2026

White Plains, New York

HON. WILLIAM J. GIACOMO, J.S.C.