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Schwartz v. Miltz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 24, 2009

WALTER SCHWARTZ, APPELLANT,
v.
MICHELLE FARKAS MILTZ, RESPONDENT.

In an action for the partition and sale of real property, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered May 13, 2008, which, after a non-jury trial, is in favor of the defendant and against him, dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DAVID S. RITTER, ANITA R. FLORIO and HOWARD MILLER, JJ.

(Index No. 11127/04)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

In August 2004 the plaintiff commenced the instant action for the partition and sale of real property. On a prior appeal in this action, this Court, inter alia, affirmed the Supreme Court's denial of the defendant's cross motion for summary judgment dismissing the complaint (see Schwartz v Miltz, 37 AD3d 816).

Following a non-jury trial, the Supreme Court erred in determining that it could not consider whether an award of equitable relief to the plaintiff was appropriate (see CPLR 3017). Accordingly, the matter must be remitted to the Supreme Court, Nassau County, to consider the issue of equitable relief.

The plaintiff's remaining contentions are without merit.

SPOLZINO, J.P., RITTER, FLORIO and MILLER, JJ., concur.

20090324

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