McCaffery v. McCaffery

Filing 70

ORDER denying 62 Motion for Summary Judgment. For the reasons set forth in the attached memorandum and order, plaintiff's motion for summary judgment is denied. This matter is referred back to Magistrate Judge Wall for all remaining pre-trial supervision. Ordered by Judge Denis R. Hurley on 3/21/2014. (Kaley, Regina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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REGINA MCCAFFERY,
Plaintiff,

MEMORANDUM AND ORDER
11 CV 0703 (DRH) (WDW)

- against MARC MCCAFFERY,
Defendant.
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APPEARANCES:

BY:

Greenberg Traurig PA
Attorneys for Plaintiff
625 E. Twiggs Street, Suit 100
Tampa, FL 33602
Christopher Torres, Esq.
David Barnett Weinstein, Esq.
John A. Wirthlin, Esq.

BY:

Chalos & Co., P.C.
Attorneys for Plaintiff
55 Hamilton Avenue
Oyster Bay, NY 11771
George M. Chalos, Esq.

BY:

Eaton & Van Winkle LLP
Attorneys for Defendant
3 Park Avenue, 16th Floor
New York, NY 10016
Robert N. Swetnick, Esq.

HURLEY, Senior District Judge:
Regina McCaffery (“plaintiff”) and Marc McCaffery (“defendant”) are adult siblings who
purchased a condominium at 27-1 Mitchell Road, Westhampton Beach, New York (“the
property”) in which their mother Barbara McCaffery (“Barbara”) currently resides. Plaintiff
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commenced this diversity action against defendant seeking partition, sale, and purchase of the
property. In the alternative, plaintiff asserts a cause of action for unjust enrichment and seeks
dissolution of an at-will partnership formed between her and defendant pursuant to N.Y. Gen.
Partnership Law §§ 10-11.
Presently before the Court is plaintiff’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure (“Rule”) 56 asking the Court to “(1) partition the property and sever the
co-tenancy of the Parties, (2) declare the Parties’ rights and obligations with respect to the
property, (3) grant sole title of the property to Plaintiff upon her purchase of Defendant’s interest,
and (4) order Defendant to reimburse Plaintiff for her disproportionate contributions as a
co-tenant.” (Pl.’s Mem. in Supp. at 2.) In the alternative, plaintiff argues that she “is entitled to
summary judgment for unjust enrichment because there is no genuine issue of material fact that
Defendant has been enriched as a result of Plaintiff’s consistent and disproportionate monetary and
non-monetary contributions to the Property,” (id. at 11), and seeks summary judgment to dissolve
the alleged at–will partnership between the parties and to reimburse plaintiff for her capital
contributions. (Id. at 12-13.) For the reasons set forth below, plaintiff’s motion is denied.
BACKGROUND
The following material facts are drawn from the parties= Local Civil Rule 56.1 Statements
and evidentiary submissions and are undisputed unless otherwise noted.
Plaintiff Regina McCaffery resides in Florida, although she also maintains a residence at
the property. Defendant Marc McCaffery resides in Michigan. Plaintiff and Defendant
purchased the property so that their mother Barbara McCaffery could live there and also to incur
the long-term benefits of the property’s appreciation. It is undisputed that prior to the parties’

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purchase of the property, Barbara lived at the property and paid rent, to which plaintiff sometimes
contributed.
It is undisputed that the parties purchased the property as tenants in common for $220,000.
To fund the purchase, the parties executed a promissory note dated July 2, 1998 in favor of Long
Island Savings Bank, FSB in the original principal amount of $198,000 and delivered a mortgage
securing the payment of that note (“the First Mortgage”). The parties also executed a second
promissory note dated June 22, 1998 in favor of Rocco Oliverio (“Oliverio”) in the original
principal amount of $28,000 also to fund the purchase of the property, and they delivered a second
mortgage to Oliverio. On March 24, 2003, the parties refinanced the property with the execution
of a third promissory note in favor of Ohio Savings Bank in the original principal amount of
$225,000 and delivered a third mortgage to Ohio Savings Bank. Although plaintiff claims that
the purpose of this loan was to make improvements to the property, defendant claims that plaintiff
retained excess funds without his knowledge or consent. It is undisputed, however, that this
refinancing fully satisfied the First Mortgage.
Moreover, it is undisputed that the parties are fee simple owners of the property as tenants
in common and neither party has transferred any of his or her ownership interest in the property.
In addition, the parties’ agree that their ownership interests in the property are subject only to the
interest of the Ohio Savings Bank, as a holder of the third mortgage, the outstanding balance of
which at the time this motion was filed was $188,433.42. 1
The Parties’ Monetary Obligations and Contributions

1

The parties do not specifically state that they have paid off the Oliverio mortgage,
however, it is implied from this statement that they have done so.
3

Although it is undisputed that there was no written agreement between the parties
concerning the management, maintenance, and ownership of the property, defendant contends that
there was an oral agreement between the parties as to each party’s obligations. According to
defendant, as a condition of defendant contributing funds for the purchase of the property,
defendant would not contribute any funds toward the mortgage payments, homeowners
association dues, or other expenses of the ownership, maintenance or operation of the property.
In addition, according to defendant, the parties verbally agreed that Barbara would pay the
mortgage and homeowners’ association dues, which were similar in amount to her former rent
payments, and plaintiff would contribute the balance needed to cover any shortfall. Plaintiff
disputes the existence of any agreement.
It is undisputed that defendant contributed $10,275 towards the down payment and
appraisal. In addition, plaintiff claims that she contributed $19,616 towards the down payment
and closing costs, although defendant asserts that these funds were derived from the Oliverio loan.
In addition, Plaintiff claims that both she and defendant each paid $10,053.50 towards the
refinancing of the Property. 2 According to plaintiff, defendant has contributed a total of
$20,328.50 towards the property (the total of his contributions to the down payment and the
refinancing), though defendant claims that he contributed over that amount and that his credit
rating suffered as a result of plaintiff’s failure to pay the mortgage in a timely fashion (as she had
agreed to do) including nine out of twelve months in just one year.

2

Defendant disputes this only to the extent the amount is not equal to one-half of the sum
by which the third mortgage exceeded the first mortgage.
4

Plaintiff claims that in addition to her contributions to the down payment and refinancing,
she paid $286,264.32 towards the mortgage 3 on the property since it was purchased. In addition,
plaintiff claims that since the property was purchased she has paid $11,953.00 towards the
insurance on the property, $57,348.70 towards the dues and assessments, and $32,092.49 towards
repairs and maintenance. In total, plaintiff claims that she has paid $389,327.51 towards the
property since it was purchased and continues to pay the mortgage, property taxes, dues and
assessments, and any repairs or maintenance of the property. An accounting of plaintiff’s
expenses, including mortgage payments, insurance payments, and repairs, is set forth in Exhibit J
to plaintiff’s declaration.
Defendant contests plaintiff’s expenditure of these funds. He claims that all of the
plaintiff’s alleged payments, although they were paid out of plaintiff’s account, were actually
derived from Barbara’s income that was deposited into plaintiff’s account. According to
defendant, Barbara, who did not have her own checking account, deposited all of her income 4 into
plaintiff’s account and used plaintiff’s pre-signed checks to pay the property’s expenses including
the mortgage payments. In addition, defendant contends that the mortgage payments Barbara
submitted were actually a form of rent because the source of those payments was Barbara’s
income. It is undisputed that in the past, plaintiff has declared on her tax returns rental income in
the amount of the mortgage payments.

3

It is undisputed that the monthly mortgage payments include the property taxes.

4

Defendant contends that Barbara’s income over a twenty year span totaled in excess of
$650,000.00, but plaintiff asserts that after taxes and deductions for the years 2002 through 2011,
Barbara’s average annual income was approximately $24,603.20.
5

In 2004, Barbara was working with the IRS to secure an offer and compromise for her
outstanding tax obligations. On September 30, 2004 the parties entered into a two-year lease
agreement with Barbara. The purpose of this lease is disputed. Plaintiff claims that its purpose
was to show the IRS that Barbara had a stable residence, while defendant claims that it was to
confirm her expenses for the IRS and her creditors in order for them to consider her net available
income. In addition, defendant claims that Barbara has been subject to either a written or verbal
lease agreement as a month-to-month tenant for the entire thirteen years since the property’s
purchase.
Barbara’s Request for Assistance
On or about November 10, 2005, Barbara asked the parties for help paying off some of her
outstanding debts. 5 According to plaintiff, she was willing to help Barbara by refinancing the
property and using the proceeds to pay the debts, but defendant would only agree to refinance the
property under the following conditions:
a) the property had to be listed and sold at a time certain
b) defendant’s wife had to be added to the title of the property
c) in the event of defendant’s death, his wife would receive a 51% share of the property
d) plaintiff had to create and execute a will to ensure that the property would go to
defendant and his family
e) Barbara had to sign a short-term lease to offset the repayment of the home equity line of
credit.

5

Defendant claims that these debts were specifically her income tax obligations for the
years 1991, 2000, and 2004.
6

Defendant does not specifically dispute these conditions, but asserts that he presented numerous
proposals all rejected by plaintiff. Additionally, defendant does not dispute that Barbara
continued to ask for defendant’s assistance on May 28, 2006 and October 4, 2006, but defendant
contends that plaintiff continually rejected his proposals to help.
According to plaintiff, on or around January 2007, plaintiff agreed personally to satisfy
Barbara’s debt obligations. On August 1, 2010, plaintiff told defendant that she was individually
approved to refinance the property with a cash-out of at least $100,000, which she would use to
repay herself the funds that she expended to pay off Barbara’s debts. Defendant claims that
plaintiff wanted the refinancing in part to pay off her personal credit card bills, and he would not
agree to plaintiff’s refinancing proposal. On October 25, 2010, plaintiff requested that defendant
provide a reasonable buy-out so that the parties could resolve the matter and that plaintiff could
obtain sole title to the property. The parties, however, could not agree on a buy-out amount.
Defendant’s Presence at the Property
It is undisputed that defendant has spent, at most, a total of seventeen days visiting or
inspecting the property since it was purchased in 1997, although defendant asserts that he was
precluded from spending any additional time at the property because Barbara and the plaintiff
refused not to smoke on the property, thereby causing defendant’s child to experience health issues
requiring his hospitalization on one occasion and precluding further visits. Defendant also
contends that plaintiff’s attorney twice denied his request for a key to the house located on the
property, and these denials appear to have taken place during the parties’ negotiations prior to the
filing of this lawsuit.

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DISCUSSION
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate

where admissible evidence in the form of affidavits, deposition transcripts, or other documentation
demonstrates the absence of a genuine issue of material fact and one party=s entitlement to
judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.
1994). The relevant governing law in each case determines which facts are material;
A[o]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.@ Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). No genuinely triable factual issue exists when
the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after
drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational
jury could find in the non-movant=s favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86
(2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts that
show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002,
1011 (2d Cir. 1996). The non-movant must present more than a Ascintilla of evidence,@ Del. &
Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477
U.S. at 252), or Asome metaphysical doubt as to the material facts,@ Aslanidis v. U.S. Lines, Inc., 7
F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

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U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot rely on the allegations in
his or her pleadings, on conclusory statements, or on Amere assertions that affidavits supporting
the motion are not credible.@ Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)
(citations omitted). AWhen no rational jury could find in favor of the nonmoving party because
the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of
summary judgment is proper.@ Gallo v. Prudential Residential Servs., Ltd. P=ship, 22 F.3d 1219,
1224 (2d Cir. 1994).
The district court, in considering a summary judgment motion, must also be mindful of the
underlying burdens of proof because Athe evidentiary burdens that the respective parties will
bear at trial guide district courts in their determination of summary judgment motions.@ Brady v.
Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the
ultimate burden of proof on an issue at trial, Athe moving party=s burden under Rule 56 will be
satisfied if he can point to an absence of evidence to support an essential element of the@
non-movant=s claim. Id. at 210-11. Where a movant without the underlying burden of proof
offers evidence that the non-movant has failed to present sufficient evidence in support of his
claim, the burden shifts to the non-movant to offer Apersuasive evidence that his claim is not
>implausible.=@ Id. at 211 (citing Matsushita, 475 U.S. at 587).
III.

Plaintiff’s Claims

A.

Partition and Sale
Plaintiff seeks a partition of the property severing the parties’ co-tenancy and asks the

Court to “declare the Parties’ rights and obligations with respect to the property,” to “grant sole
title of the property to Plaintiff upon her purchase of Defendant’s interest,” and to “order

9

Defendant to reimburse Plaintiff for her disproportionate contributions as a co-tenant.” (Pl.’s
Mem. in Supp. at 2.) Neither party disputes that the partition sought in this case is governed by
Real Property Actions and Proceedings Law (“RPAPL”) Article 9. According to RPAPL §
901(1) the right of partition is available to a tenant in common in possession of real property. See
also Rosen v. Rosen, 78 A.D.2d 911 (3d Dep’t 1980) (“It is well settled that partition among
tenants in common of real property is a matter of right where the tenants no longer desire to hold
the property in common.”) Here there is no question that plaintiff is a tenant in common in
possession of the property and that the right of partition is available to her.
“The object of partition proceedings is to enable those who own property as joint tenants
or coparceners or tenants in common to put an end to the tenancy, so as to vest in each a sole estate
in specific property or an allotment of the lands or tenements. Unless such a division can be
accomplished, then the joint estate should be sold and the proceeds divided.” Cahill v. Cahill,
226 N.Y.S. 199, 205 (Sup. Ct. 1927). Furthermore, according to RPAPL § 915, an “interlocutory
judgment shall determine the right, share or interest of each party in the property,” and “[w]here
the property or any part thereof is so circumstanced that a partition thereof cannot be made without
great prejudice to the owners, the interlocutory judgment . . . shall direct that the property or the
part so circumstanced be sold at public auction.” Here, both parties’ submissions contemplate
that a division of the property is not possible, and so the property must be sold and the proceeds
divided. In addition, both parties concur that ordinarily tenants in common share the proceeds of
a sale of the property in direct proportion to their ownership interest, and that here each party as a
tenant in common has a one half interest. (Def.’s Mem. in Opp’n at 14; Pl.’s Mem. in Supp at 1,

10

7.) Plaintiff, however, argues that she is entitled to more than one half of the sale proceeds as
reimbursement for her contributions “in excess of her obligations.” (Pl.’s Mem. in Supp. at 8.)
Specifically, plaintiff claims that she contributed $389,327.51 to the property, “all of which was
necessary to protect and preserve” the property, and defendant contributed only $20,328.50.”
Moreover, plaintiff argues that “[b]ecause the Parties each have a one-half undivided interest in the
Property, they were each obligated to contribute $204,828.01 towards the Property” and
“[c]onsequently, Plaintiff is entitled to $184,499.51 in reimbursement for her contributions in
excess of her legal interest.” (Pl.’s Mem. in Supp. at 9.)
“While the Defendant agrees that upon a proper partition determination, and the necessary
determination that partition be by sale, a sale of the Property could be made by public auction, [he
contends] there must also first be [inter alia] the determination of the parties’ rights and interests,
including, if necessary, a trial of claimed adjustments to the distribution of proceeds . . . .” (Def.’s
Mem. in Opp’n at 13.) According to defendant, “any determination of the income and expenses
of a property and any resulting adjustment to the ordinary division of sales proceeds according to
the proportion of ownership interest must be made prior to entering the interlocutory judgment.”
(Def’s Mem. in Opp’n at 19.) Defendant cites case law supporting this position. See Worthing v.
Cossar, 93 A.D.2d 515 (4th Dep’t 1983) (adjusting trial court’s division of proceeds from sale set
forth in trial court’s post-trial interlocutory judgment); see also McVicker v. Sarma, 163 A.D.2d
721, 722 (3d Dep’t 1990) (“[a]n accounting of the income and expenses of the partitioned property
is a necessary incident and should be had as a matter of right before entry of the interlocutory or
final judgment and before any division of money between the parties”). Plaintiff does not contest

11

the need to “determine a co-tenant’s distribution upon a partition sale” through an accounting of
“income, expenses, and relative contributions of the co-tenants,” however, she contends that she is
entitled to summary judgment as there is no question of fact that she should be reimbursed for
those expenses set forth in the accounting she provides as Exhibit J. (Pl.’s Mem. in Supp. at 8.)
The Court concludes that summary judgment is not appropriate and that it cannot enter an
interlocutory judgment at this stage because there are genuine issues of material fact as to the
proper division of the proceeds from a partition sale and a trial is necessary to determine whether
plaintiff is entitled to reimbursement. In particular, defendant has raised genuine issues of fact as
to whether plaintiff is entitled to reimbursement given the alleged agreement between the parties
that plaintiff would pay Barbara’s expenses. In addition, the Court cannot enter an interlocutory
judgment at this stage because plaintiff has not persuaded the Court that she should be reimbursed
for payments derived from Barbara’s income deposited in plaintiff’s account. The Court
examines these issues in turn.
1.

The Agreement

Defendant argues that “[i]n this case, there is an agreement on expenses so there is no right
to disbursement or need to make any adjustment to the proportional division of proceeds of a sale.”
(Def.’s Mem. in Opp’n at 14.) According to defendant, he and plaintiff verbally agreed that his
“cash contribution would be limited to the down payment of $10,275 required to secure the
contract and his credit contribution in taking out the mortgage with Plaintiff,” and “Barbara was to
pay the monthly mortgage payments and homeowner’s association dues as well as expenses that
she had been paying as a renter, such as utilities, insurance, routine repairs and maintenance, and

12

any shortfall would be paid by [plaintiff],” who also “was to pay any sums needed for the closing
over and above [defendant’s] payment.” (Def.’s Mem. in Opp’n at 4.) In support of this
assertion, defendant cites his own declaration setting forth the terms of the agreement as well as
various portions of the plaintiff’s deposition discussing the plaintiff’s understanding of the parties’
responsibilities regarding the property. In particular, defendant cites a portion of plaintiff’s
deposition where she discusses talking to defendant on the telephone and affirming her
understanding that she would be responsible for the mortgage and other expenses. (Pl.’s Dep. at
57-58.) Defendant also cites two portions of plaintiff’s deposition where plaintiff referred to the
parties as having a “deal” that defendant would contribute solely to the down payment and that
plaintiff was responsible for the other expenses. (Id. at 146, 171-72.) Moreover, plaintiff in her
deposition conceded that her assuming full responsibility for the mortgage and other expenses was
“conditioned to [defendant’s] agreeing to going on with the mortgage and closing.” (Id. at
163-64.)
Plaintiff, however, argues that there is no evidence of a binding oral agreement between the
parties. (Pl.’s Reply at 3.) Moreover, she claims that there was no mutual assent between the
parties as to any terms of the purported agreement and defendant “fails to articulate the definite
terms of the purported oral agreement with the particularity required to support a binding oral
contract.” (Id. at 3-4.) As support for this position, plaintiff cites Charles Hyman, Inc. v. Olsen
Indus. Inc., for the proposition that “[b]efore a court will impose contractual obligation [based on a
purported verbal agreement], it must ascertain that a contract was made and that its terms are
definite.” 27 A.D.2d 270, 275 (1st Dep’t 1996). Here, however, defendant has presented

13

evidence supporting his claim that there was a binding oral agreement 6 whose terms were definite
in that his own contribution would be limited to the down payment and plaintiff and/or Barbara
would be responsible for the rest of the expenses. As a result, there is a genuine question of fact
as to whether plaintiff agreed to carry these expenses and whether she is entitled to reimbursement.
2.

Source of funds

Even if the Court could conclude at this stage that there was no oral agreement precluding
plaintiff from reimbursement, plaintiff has not persuaded the Court that as a matter of law she is
entitled to reimbursement of funds deposited by Barbara into her account. Defendant argues that
the Court should not “ignore the evidence that Barbara and not Plaintiff paid the expenses for
which Plaintiff seeks to be credited in a distribution of sale proceeds.” (Def.’s Mem. in Opp’n at
21.) In response, “Plaintiff does not dispute Defendant’s contention that Mrs. McCaffery
deposited funds into Plaintiff’s individually-held bank account,” but asserts that that fact “has no
bearing on Plaintiff’s claim for reimbursement because the funds withdrawn from Plaintiff’s
individually-held bank account were Plaintiff’s property for which she is entitled to
reimbursement” and claims that “the source of the funds from which a co-tenant pays towards a
property is irrelevant.” (Pl.’s Reply at 5-6.) In support of these assertions, plaintiff cites
Degliuomini v. Degliuomini, 45 A.D.3d 626, 628-69 (2d Dep’t 2007) and Masek v. Wichelman, 67
A.D.3d 444, 446 (1st Dep’t 2009), although the Court does not agree with plaintiff’s reading of
these cases. In Degliuomini, the court ruled that one of the parties to a partition action should be
6

Plaintiff does not contest defendant’s assertion that the statute of frauds does not apply to
the purported agreement between plaintiff and defendant, nor does she contest defendant’s
argument that even if the statute of frauds did apply, it would be satisfied. (Def.’s Mem. in Opp’n
at 16-18.)
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reimbursed for payments toward real estate taxes and the mortgage on the property that her
wholly-owned corporation made on her behalf. Similarly, in Masek, the court held that a party to
a partition action could be reimbursed for expenses paid via checks drawn on the account of the
party’s wholly owned corporation because the “payments were not made by a nonparty entity, but
were in fact, made by the plaintiff as permissible distributions of his corporation.” 67 A.D.3d at
446. While the Court recognizes through these cases that co-tenants may be entitled to
reimbursement for payments drawn on the account of the co-tenant’s wholly owned corporation,
the Court will not go so far as to extrapolate from these cases that the source of the funds is
completely irrelevant, especially whereas here the payments were not made by plaintiff’s wholly –
owned corporation such that they “were in fact” made by the plaintiff, but rather there is evidence
that the payments were made by Barbara McCaffery. Moreover, plaintiff has not met her burden
in demonstrating that the Court should rule as a matter of law that plaintiff is entitled to
reimbursement for payments Barbara made via pre-signed checks drawn on an account containing
Barbara’s own income. 7

7

According to RPAPL § 903(1), any individual with a tenancy interest in the property is a
necessary party. As discussed above, there is evidence that Barbara lived on the property and
paid the property’s expenses via checks drawn on the plaintiff’s account. Whether these
payments were in fact rent creating a tenancy interest held by Barbara cannot be resolved on the
arguments before the Court at this time.
The Court, however, rejects defendant’s contention that the mortgagee and the
condominium association are necessary parties because they have liens and interests in the
property. Pursuant to RPAPL § 904(2), a person having a lien or interest in the property is a
permissive defendant. Regarding the mortgagee, as plaintiff notes, the mortgagee is a permissive
rather than necessary party because “failure to have made the mortgagee a party does not make the
proceedings null and void, but might make the title unmarketable and result in the purchaser
having the right to be relieved of his purchase.” (Pl.’s Reply at 9 n.39 (citing Roberts v. Walker,
28 A.D.2d 1146, 1147 (3d Dep’t 1967)).) Furthermore, defendant has not put forth any evidence
15

As described above, material issues of fact as to whether there was an oral agreement 8
prevent the Court from entering an interlocutory judgment at this stage 9 as well as a declaration
setting forth the rights and obligations of the parties with respect to the property. Moreover,
plaintiff has not demonstrated that she is entitled to reimbursement for payments derived from
Barbara’s income deposited into her account. Furthermore, because the Court cannot conclude at
this stage that plaintiff is entitled to reimbursement, plaintiff’s request for summary judgment on
her claim of unjust enrichment as well as her request for “reimbursement for her disproportionate
capital contributions” based on her theory that the parties formed an at-will general partnership 10

demonstrating that the condominium association has a lien or interest in the property.
8

Given the issues of fact already presented, the Court will not reach defendant’s argument
that “[e]ven if Plaintiff could prove any such expenditures and even if the Court could enter
judgment on this issue now, she still would be owed nothing by Defendant” because defendant has
been effectively ousted from the property due to plaintiff’s and Barbara’s smoking habits as well
as plaintiff’s attorney’s refusal to provide him with a key. (Def.’s Mem. in Opp’n at 20.) In
addition, to the extent the plaintiff may be entitled to reimbursement at trial, the trier of fact will
determine whether plaintiff is entitled to reimbursement for “repairs and improvements ‘made in
good faith’ and necessary to protect the property.” (Pl.’s Mem. in Supp. at 8-9 (citing Wawrzusin
v. Wawrzusin, 212 A.D.2d 779, 780 (2d Dep’t 1995)).)
9

Additionally, at this time, the plaintiff has provided no authority supporting her
proposition that the Court order plaintiff’s purchase of defendant’s interest in the property. The
cases plaintiff cites support only that plaintiff may purchase the property at a public auction. See
Cahill v. Cahill, 131 Misc. 99, 102 (Sup. Ct. 1927) (“The interlocutory judgment provided that any
party to the action might become a purchaser of the premises upon said sale.”); Hausman v.
Hausman, 74 A.D.2d 597, 597 (2d Dep’t 1980) (involving tenant in common who is purchaser at
partition sale); see also RPAPL § 915 (providing that the sale of property be at public auction).
10

Plaintiff’s theory of an at-will partnership is itself questionable as New York’s General
Partnership Law § 11(2), cited by the plaintiff, explicitly states that “tenancy in common . . . does
not of itself establish a partnership, whether such co-owners do or do not share any profits made by
use of the property.”
16

also fail. (Pl.’s Mem. in Supp. at 11-13.)

Accordingly, plaintiff’s motion for summary

judgment is denied. 11
CONCLUSION
For the reasons set forth above, plaintiff’s motion for summary judgment is denied. This
matter is referred back to Magistrate Judge Wall for all remaining pre-trial supervision.

SO ORDERED.
Dated: Central Islip, New York
March 21, 2014
/s/
Denis R. Hurley
United States District Judge

11

Because the plaintiff has failed to prove her claim on summary judgment, the Court
declines to address at this stage the validity of defendant’s affirmative defenses.
17