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FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
WAYNE NORTON,
Plaintiff,
MEMORANDUM OF LAW
v.
Index No. 008543/2020
ROBERT NORTON and BRUCE NORTON,
Defendants.
Plaintiff Wayne Norton, ("Plaintiff"), by and through his attorneys, Melvin & Melvin,
PLLC, Erin M. Tyreman, Esq., of counsel, respectfully offers this memorandum of law in
support of his motion for partial summary judgment granting an Order to partition the subject
real property.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
For a statement of the relevant facts and procedural history, Plaintiff respectfully refers
the Court to the Affirmation of Erin M. Tyreman, Esq., sworn to on May 13, 2022 ("Tyreman
Affirmation") and the Affidavit of Wayne Norton, sworn to on February 4, 2022, both of which
are incorporated by reference as if fully set forth herein.
ARGUMENT
I. There are no issues of fact which would warrant a trial in the instant matter.
It is well settled that a proponent of a motion for summary judgment must come forward
with admissible evidence that there exists no material issue of fact and it is entitled to judgment
as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York
Univ. Medical Ctr., 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980);
Greenidge v. HRH Construction Corp., 279 AD2d 400 (1st Dept. 2001). "The proponent of a
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summary judgment motion must make a prima facie showing of entitlement to judgment as a
matter of law, tendering sufficient evidence to eliminate any material issues of fact from the
case."
Winegrad v. N.Y Univ. Med. Ctr., 64 NY2d 851, (1985); Zuckerman v City of New York,
49 NY2d 557 (1980).
After the proponent has established its prima facie entitlement to judgment as a matter of
law, the burden shifts to the opposing party to present proof of evidentiary facts showing the
existence of a genuine issue of triable fact. Federal Deposit Ins. Corp. v. Hyer, 66 AD2d 521
(2nd Dept 1979); Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27 (1st Dept. 1979).
Importantly, opposing proofs are "insufficient to defeat a motion for summary judgment when
suspicion."
they merely consist of conclusory allegations in the nature of surmise, conjecture and
Braun v. New York Life Ins. Co., 42 NY2d 1020 (1977). "Where the moving party has
demonstrated its entitlement to summary judgment, the party opposing the motion must
demonstrate by admissible evidence the existence of a factual issue requiring a trial of the
action."
Goldstein v. County of Monroe, 77 AD2d 232 (4th Dept. 1980).
In the instant matter, Plaintiff respectfully requests an award of partial summary
judgment on his cause of action for partition and an Order granting partition of the subject real
property where there exist no issues of fact regarding the Plaintiff's title to or interest in the
subject real property and there is no issue of fact that partitioning of the subject real property
would cause no prejudice to either party.
II. Plaintiff is entitled to partition of the subject real property.
Real Property Actions and Proceedings Law §§ 901 et seq. provides a remedy of partition
to tenants in common as owners of real property. Plaintiff and Defendant own and possess in fee
as tenants in common the subject Premises as defined in the Warranty Deed annexed to the
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Wayne Norton Affidavit as Exhibit A. The Plaintiff will be successful in an action for partition if
it can be shown that he is a proper owner of the premises with the right to maintain an action for
partition, and that partition will not cause prejudice to the Defendants as tenants in common with
Plaintiff.
With respect to establishing Plaintiff's ownership, we refer to and rely upon the Warranty
Deed dated November 1, 2002. Specifically, Angelina Norton deeded the subject real property to
her three children, Wayne Norton, Robert Norton and Bruce Norton as tenants in common. See
Wayne Norton Affidavit, Exhibit A. This is undisputed by either of the Defendants.
Under RPAPL § 901, "[A] person holding and in possession of real property as joint
tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may
maintain an action for the partition of the property, and for a sale if it appears that a partition
owners."
cannot be made without great prejudice to the See NY CLS RPAPL § 901. "Owner of
common."
an undivided interest is a tenant in Willis v. Sterling, 224 AD 647 (4th Dept.
partitioned."
1928). "Unquestionably a tenant in common has a right to have real property
Rosanoffv. Skura, 50 Misc2d 1090 (Westchester Cty 1966); Chiang v. Chang, 137 AD2d 371
(1st Dept. 1988).
Importantly, as is the case in the instant matter, "the aim of an action for partition is to
enable co-owners of property to put an end to the tenancy so as to vest in each owner a sole
estate in specific property, an allotment of property on its division, or to obtain for each owner a
sale."
share of the proceeds after Cahill v. Cahill, 131 Misc 99 (Oneida Cty 1927). The right to
partition has been long recognized as a "valuable part of such interest in that it affords the owner
co-owners."
a means of disposing of his interest which cannot be defeated by his Casolo v.
Nardella, 275 AD 502 (3rd Dept. 1949).
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"The only relief available in an action for partition is the actual physical partition of the
proceeds."
property, or, if that be inequitable, sale of the entire parcel and division of the Vlcek v.
Vicek, 42 AD2d 308 (3rd Dept. 1973); see also NY CLS RPAPL § 915.
In an action seeking partition, the Court held that:
The question is not whether a sale might be more agreeable or even in some respects
more advantageous to some of the parties. The statute makes a sale the secondary
consideration. The question first to be considered and adjudicated is, can there be an
actual partition? There is but one instance in which the court has a right to direct a sale,
owners."
and that is where partition cannot be made without great prejudice to the
Patrick v. Preiser, 73 Misc2d 639 (Sullivan Cty 1972) quoting Moore v. Hatfield, 71
Misc 282 (Nassau Cty 1911).
In Patrick v. Preiser, the property seeking to be partitioned was two noncontiguous but
neighboring parcels of unimproved real property primarily devoted to hunting, camping and
recreational use. 73 Misc2d at 641. The Court held that the primary argument against partition
unique."
"rests solely upon the verity that all land is Id. The Court also held that a finding of "great
prejudice"
as required by the Legislature must rest upon a circumstance other than the "uniqueness
divided."
of the land to be Id. Lastly, the Court held that if in fact there was an inequality in division
of the land, such could be corrected by varying the quantity of land in each parcel, or by including
in the judgment monetary adjustments needed to correct the inequality. Id. at 641-642. The
application for partition was granted.
prejudice"
The Second Department held in 1897 that proof of "great requires a showing
circumstanced"
that the subject property is "so that a partition thereof cannot be made. Chittenden
v. Gates, 18 AD 169 (2nd Dept. 1897). In Chittenden, the property sought to be partitioned was a
long, narrow beach of sand lying between the ocean and Jamaica Bay. The Second Department
held that in comparing the proposed parcels after partition acre by acre, one parcel was not
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"seriously different from the one lying next to it, or . . . one interior acre was not of greater value
acre."
than another interior Id. at 173.
By way of example, the Court in Ferguson v. McLoughlin, held that partition would
owners"
render "great prejudice to the where the parcel to be partitioned contained a five-story
building with "one address, one electrical and gas service main, one sewer service, one roof, one
basement, one fire escape, one main water supply, one real estate tax liability, one common
hallway, one stairway, one boiler and heating system, one hot water tank, one liability insurance
policy and one fire and casualty insurance policy. A lateral or vertical bisection of this realty would
inalienable."
destroy its marketability and render it virtually 184 AD2d 294 (1st Dept. 1992).
Similar to Ferguson, the subject real property in the instant matter is improved by a one
story residence and garage-physical partition of which cannot be accomplished. For these
reasons, a sale of the subject real property is necessary. Based upon the other causes of action in
Plaintiff's Complaint, while he is not moving for summary judgment as to those claims, Plaintiff
requests that any and all proceeds from the sale of the subject real property if partition is granted
be placed into escrow until the other issues in this matter have been resolved, whether by trial or
otherwise.
Based upon all of the above, Plaintiff has met his prima facie entitlement to judgment
as a matter of law for partition of the subject Premises and appointment of commissioners by the
Court to effectuate the partition.
m. Defendant Robert Norton's affirmative defenses and counterclaims do not
prohibit entry of partial summary judgment on the cause of action for
partition.
As an initial matter, Defendant Bruce Norton has not asserted affirmative defense or
counterclaims to the causes of action in Plaintiff's Complaint.
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Turning to Defendant Robert Norton's Answer and Counterclaims, it is asserted that
Robert Norton's two counterclaims do not pertain to partition of the subject real property but
instead seek a determination and monetary judgment regarding the costs of upkeep and
maintenance for the subject property. Plaintiff does not seek summary judgment as to these
counterclaims as there are clear issues of fact that will need to be resolved at trial. However,
Plaintiff also asserts that nothing in Robert Norton's counterclaims prohibit the Court from
entering partial summary judgment in favor of Plaintiff for partition of the subject real property.
Robert Norton's first, second, third, fifth, sixth, seventh and eighth affirmative defenses
are not defenses to an action for partition.
The first affirmative defense alleges failure to state a claim. Plaintiff has clearly set forth
in its Complaint that it is a true and legal owner as tenants in common of the subject real property
with Defendants and has attached to its Complaint the deed demonstrating the same. Therefore,
Plaintiff has properly met the pleading requirements for an action for partition.
The second affirmative defense alleges that any damages sustained by Plaintiff were the
result of Plaintiff's acts or omissions or the acts or omissions of parties other than Defendant
Robert Norton. Because this motion for partial summary judgment is not asking for any
determination or award of monetary damages as to the other causes of action in Plaintiff's
Complaint, this affirmative defense is unrelated to and has no bearing upon this motion for partial
summary judgment on the cause of action for partition.
The third affirmative defense is a duplicate of the second affirmative defense and for the
same reasons, is not applicable to Plaintiff's motion for partial summary judgment on his cause of
action for partition.
The fourth affirmative defense alleges that Plaintiff's claims are barred by the statute of
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limitations. However, it is well settled that a partition action "by one or more cotenants is
survives."
unaffected by any limitations period for as long as the cotenancy Rokeach v. Zaltz, 112
AD2d 209 (2nd Dept. 1985); Rosen v. Rosen, 78 AD2d 911 (3rd Dept. 1980). This is because the
exists."
"cause of action for partition is a continuing one so long as the cotenancy Dresser v. Travis,
39 Misc 358 (NY Cty 1902). For the same reasons, Robert Norton's sixth affirmative defense of
laches and his seventh and eighth affirmative defense of waiver are not applicable to the Plaintiff's
cause of action for partition.
The fifth affirmative defense alleges the doctrine of unclean hands, however, like the
other affirmative defenses, this doctrine is not a defense to an action for partition. The Fourth
Department in Grossman v. Baker, 583 NYS2d 92 (4th Dept. 1992) held that although a partition
action is subject to equities between the parties, equitable defenses such as unclean hands are not
available in a partition action. See also Ripp v. Ripp, 38 AD2d 65 (2nd Dept. 1971); Jones v.
Gabrielli, 6 AD2d 542 (3rd Dept. 1958); Jurdak v. Figueroa, 34 Misc2d 4 (Nassau Cty 1961)(
"Plaintiff-s right to partition is absolute, and is not subject to the claim of laches, estoppel or
unclean hands.").
Importantly, the statutory right to partition as a tenant in common is absolute and "in the
absence of any extraordinary or unusual circumstance the right of partition should be strictly
observed."
Socoloff v. Socoloff 14 Misc2d 604 (Kings Cty 1958); see also Bentley v. Dox, 12
AD3d 1187 (4th Dept. 2004).
Notably, Defendant Robert Norton does not raise any affirmative defense or
counterclaim contesting Plaintiff's title, ownership or possession of the subject Premises.
Defendant has also failed to raise any affirmative defense or counterclaim alleging or establishing
that partition would cause great prejudice to any of the parties. Where Plaintiff has established that
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he is an owner as a tenant in common with Defendant of the subject Premises, that partition has
become necessary and no great prejudice would result to either party as a result, Plaintiff is entitled
to summary judgment granting his application for partition and appointment of commissioners.
IV. Plaintiff is entitled to partial summary judgment on his Fourth Cause of
Action for Breach of Contract for Defendant Robert Norton's failure to remit
payment pursuant to the terms of a Promissory Note.
As is alleged in the Complaint and Plaintiff's sworn affidavit in support of the
instant motion for partial summary judgment, Defendant Robert Norton is in default of the July
11, 2012 Promissory Note whereby he promised to pay to Plaintiff the sum of $25,000.00 upon
due demand for same.
To establish a prima facie case for breach of contract, it must be shown that 1) a contract
existed, 2) that Plaintiff performed pursuant to the contract, 3) that Defendant failed to perform
pursuant to the contract, and 4) Plaintiff incurred damages as a result of Defendant's failure to
(4*
perform. See Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 AD3d 1527 Dept.
2017).
In the instant matter, the Promissory Note was executed by Robert Norton and his
signature was notarized on July 11, 2012. See Exhibit B to Wayne Norton affidavit. The
consideration given for Defendant Robert Norton's execution of the promissory note was
$25,000.00 provided by Plaintiff Wayne Norton. Therefore, because Plaintiff provided the
$25,000.00, Plaintiff has performed his end of the contract. Plaintiff demanded payment of the
$25,000.00 on September 15, 2020 in writing. Defendant Robert Norton to the present date has
not paid any of the $25,000.00 to Plaintiff. As a result, Plaintiff has suffered damages in the amount
of $25,000.00. Plaintiff has suffered additional damages in the costs and fees associated with
bringing legal action to collect upon the Promissory Note and is entitled to recover those costs and
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fees as set forth in the terms of the Promissory Note. Hooper Associates, Ltd. v. AGS Computers,
Inc., 74 NY2d 487 (1989).
For all of these reasons, Plaintiff's motion
Preview
FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA WAYNE NORTON, Plaintiff, MEMORANDUM OF LAW v. Index No. 008543/2020 ROBERT NORTON and BRUCE NORTON, Defendants. Plaintiff Wayne Norton, ("Plaintiff"), by and through his attorneys, Melvin & Melvin, PLLC, Erin M. Tyreman, Esq., of counsel, respectfully offers this memorandum of law in support of his motion for partial summary judgment granting an Order to partition the subject real property. STATEMENT OF FACTS AND PROCEDURAL HISTORY For a statement of the relevant facts and procedural history, Plaintiff respectfully refers the Court to the Affirmation of Erin M. Tyreman, Esq., sworn to on May 13, 2022 ("Tyreman Affirmation") and the Affidavit of Wayne Norton, sworn to on February 4, 2022, both of which are incorporated by reference as if fully set forth herein. ARGUMENT I. There are no issues of fact which would warrant a trial in the instant matter. It is well settled that a proponent of a motion for summary judgment must come forward with admissible evidence that there exists no material issue of fact and it is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York Univ. Medical Ctr., 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980); Greenidge v. HRH Construction Corp., 279 AD2d 400 (1st Dept. 2001). "The proponent of a 1 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. N.Y Univ. Med. Ctr., 64 NY2d 851, (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). After the proponent has established its prima facie entitlement to judgment as a matter of law, the burden shifts to the opposing party to present proof of evidentiary facts showing the existence of a genuine issue of triable fact. Federal Deposit Ins. Corp. v. Hyer, 66 AD2d 521 (2nd Dept 1979); Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27 (1st Dept. 1979). Importantly, opposing proofs are "insufficient to defeat a motion for summary judgment when suspicion." they merely consist of conclusory allegations in the nature of surmise, conjecture and Braun v. New York Life Ins. Co., 42 NY2d 1020 (1977). "Where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action." Goldstein v. County of Monroe, 77 AD2d 232 (4th Dept. 1980). In the instant matter, Plaintiff respectfully requests an award of partial summary judgment on his cause of action for partition and an Order granting partition of the subject real property where there exist no issues of fact regarding the Plaintiff's title to or interest in the subject real property and there is no issue of fact that partitioning of the subject real property would cause no prejudice to either party. II. Plaintiff is entitled to partition of the subject real property. Real Property Actions and Proceedings Law §§ 901 et seq. provides a remedy of partition to tenants in common as owners of real property. Plaintiff and Defendant own and possess in fee as tenants in common the subject Premises as defined in the Warranty Deed annexed to the 2 2 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 Wayne Norton Affidavit as Exhibit A. The Plaintiff will be successful in an action for partition if it can be shown that he is a proper owner of the premises with the right to maintain an action for partition, and that partition will not cause prejudice to the Defendants as tenants in common with Plaintiff. With respect to establishing Plaintiff's ownership, we refer to and rely upon the Warranty Deed dated November 1, 2002. Specifically, Angelina Norton deeded the subject real property to her three children, Wayne Norton, Robert Norton and Bruce Norton as tenants in common. See Wayne Norton Affidavit, Exhibit A. This is undisputed by either of the Defendants. Under RPAPL § 901, "[A] person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition owners." cannot be made without great prejudice to the See NY CLS RPAPL § 901. "Owner of common." an undivided interest is a tenant in Willis v. Sterling, 224 AD 647 (4th Dept. partitioned." 1928). "Unquestionably a tenant in common has a right to have real property Rosanoffv. Skura, 50 Misc2d 1090 (Westchester Cty 1966); Chiang v. Chang, 137 AD2d 371 (1st Dept. 1988). Importantly, as is the case in the instant matter, "the aim of an action for partition is to enable co-owners of property to put an end to the tenancy so as to vest in each owner a sole estate in specific property, an allotment of property on its division, or to obtain for each owner a sale." share of the proceeds after Cahill v. Cahill, 131 Misc 99 (Oneida Cty 1927). The right to partition has been long recognized as a "valuable part of such interest in that it affords the owner co-owners." a means of disposing of his interest which cannot be defeated by his Casolo v. Nardella, 275 AD 502 (3rd Dept. 1949). 3 3 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 "The only relief available in an action for partition is the actual physical partition of the proceeds." property, or, if that be inequitable, sale of the entire parcel and division of the Vlcek v. Vicek, 42 AD2d 308 (3rd Dept. 1973); see also NY CLS RPAPL § 915. In an action seeking partition, the Court held that: The question is not whether a sale might be more agreeable or even in some respects more advantageous to some of the parties. The statute makes a sale the secondary consideration. The question first to be considered and adjudicated is, can there be an actual partition? There is but one instance in which the court has a right to direct a sale, owners." and that is where partition cannot be made without great prejudice to the Patrick v. Preiser, 73 Misc2d 639 (Sullivan Cty 1972) quoting Moore v. Hatfield, 71 Misc 282 (Nassau Cty 1911). In Patrick v. Preiser, the property seeking to be partitioned was two noncontiguous but neighboring parcels of unimproved real property primarily devoted to hunting, camping and recreational use. 73 Misc2d at 641. The Court held that the primary argument against partition unique." "rests solely upon the verity that all land is Id. The Court also held that a finding of "great prejudice" as required by the Legislature must rest upon a circumstance other than the "uniqueness divided." of the land to be Id. Lastly, the Court held that if in fact there was an inequality in division of the land, such could be corrected by varying the quantity of land in each parcel, or by including in the judgment monetary adjustments needed to correct the inequality. Id. at 641-642. The application for partition was granted. prejudice" The Second Department held in 1897 that proof of "great requires a showing circumstanced" that the subject property is "so that a partition thereof cannot be made. Chittenden v. Gates, 18 AD 169 (2nd Dept. 1897). In Chittenden, the property sought to be partitioned was a long, narrow beach of sand lying between the ocean and Jamaica Bay. The Second Department held that in comparing the proposed parcels after partition acre by acre, one parcel was not 4 4 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 "seriously different from the one lying next to it, or . . . one interior acre was not of greater value acre." than another interior Id. at 173. By way of example, the Court in Ferguson v. McLoughlin, held that partition would owners" render "great prejudice to the where the parcel to be partitioned contained a five-story building with "one address, one electrical and gas service main, one sewer service, one roof, one basement, one fire escape, one main water supply, one real estate tax liability, one common hallway, one stairway, one boiler and heating system, one hot water tank, one liability insurance policy and one fire and casualty insurance policy. A lateral or vertical bisection of this realty would inalienable." destroy its marketability and render it virtually 184 AD2d 294 (1st Dept. 1992). Similar to Ferguson, the subject real property in the instant matter is improved by a one story residence and garage-physical partition of which cannot be accomplished. For these reasons, a sale of the subject real property is necessary. Based upon the other causes of action in Plaintiff's Complaint, while he is not moving for summary judgment as to those claims, Plaintiff requests that any and all proceeds from the sale of the subject real property if partition is granted be placed into escrow until the other issues in this matter have been resolved, whether by trial or otherwise. Based upon all of the above, Plaintiff has met his prima facie entitlement to judgment as a matter of law for partition of the subject Premises and appointment of commissioners by the Court to effectuate the partition. m. Defendant Robert Norton's affirmative defenses and counterclaims do not prohibit entry of partial summary judgment on the cause of action for partition. As an initial matter, Defendant Bruce Norton has not asserted affirmative defense or counterclaims to the causes of action in Plaintiff's Complaint. 5 5 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 Turning to Defendant Robert Norton's Answer and Counterclaims, it is asserted that Robert Norton's two counterclaims do not pertain to partition of the subject real property but instead seek a determination and monetary judgment regarding the costs of upkeep and maintenance for the subject property. Plaintiff does not seek summary judgment as to these counterclaims as there are clear issues of fact that will need to be resolved at trial. However, Plaintiff also asserts that nothing in Robert Norton's counterclaims prohibit the Court from entering partial summary judgment in favor of Plaintiff for partition of the subject real property. Robert Norton's first, second, third, fifth, sixth, seventh and eighth affirmative defenses are not defenses to an action for partition. The first affirmative defense alleges failure to state a claim. Plaintiff has clearly set forth in its Complaint that it is a true and legal owner as tenants in common of the subject real property with Defendants and has attached to its Complaint the deed demonstrating the same. Therefore, Plaintiff has properly met the pleading requirements for an action for partition. The second affirmative defense alleges that any damages sustained by Plaintiff were the result of Plaintiff's acts or omissions or the acts or omissions of parties other than Defendant Robert Norton. Because this motion for partial summary judgment is not asking for any determination or award of monetary damages as to the other causes of action in Plaintiff's Complaint, this affirmative defense is unrelated to and has no bearing upon this motion for partial summary judgment on the cause of action for partition. The third affirmative defense is a duplicate of the second affirmative defense and for the same reasons, is not applicable to Plaintiff's motion for partial summary judgment on his cause of action for partition. The fourth affirmative defense alleges that Plaintiff's claims are barred by the statute of 6 6 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 limitations. However, it is well settled that a partition action "by one or more cotenants is survives." unaffected by any limitations period for as long as the cotenancy Rokeach v. Zaltz, 112 AD2d 209 (2nd Dept. 1985); Rosen v. Rosen, 78 AD2d 911 (3rd Dept. 1980). This is because the exists." "cause of action for partition is a continuing one so long as the cotenancy Dresser v. Travis, 39 Misc 358 (NY Cty 1902). For the same reasons, Robert Norton's sixth affirmative defense of laches and his seventh and eighth affirmative defense of waiver are not applicable to the Plaintiff's cause of action for partition. The fifth affirmative defense alleges the doctrine of unclean hands, however, like the other affirmative defenses, this doctrine is not a defense to an action for partition. The Fourth Department in Grossman v. Baker, 583 NYS2d 92 (4th Dept. 1992) held that although a partition action is subject to equities between the parties, equitable defenses such as unclean hands are not available in a partition action. See also Ripp v. Ripp, 38 AD2d 65 (2nd Dept. 1971); Jones v. Gabrielli, 6 AD2d 542 (3rd Dept. 1958); Jurdak v. Figueroa, 34 Misc2d 4 (Nassau Cty 1961)( "Plaintiff-s right to partition is absolute, and is not subject to the claim of laches, estoppel or unclean hands."). Importantly, the statutory right to partition as a tenant in common is absolute and "in the absence of any extraordinary or unusual circumstance the right of partition should be strictly observed." Socoloff v. Socoloff 14 Misc2d 604 (Kings Cty 1958); see also Bentley v. Dox, 12 AD3d 1187 (4th Dept. 2004). Notably, Defendant Robert Norton does not raise any affirmative defense or counterclaim contesting Plaintiff's title, ownership or possession of the subject Premises. Defendant has also failed to raise any affirmative defense or counterclaim alleging or establishing that partition would cause great prejudice to any of the parties. Where Plaintiff has established that 7 7 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 he is an owner as a tenant in common with Defendant of the subject Premises, that partition has become necessary and no great prejudice would result to either party as a result, Plaintiff is entitled to summary judgment granting his application for partition and appointment of commissioners. IV. Plaintiff is entitled to partial summary judgment on his Fourth Cause of Action for Breach of Contract for Defendant Robert Norton's failure to remit payment pursuant to the terms of a Promissory Note. As is alleged in the Complaint and Plaintiff's sworn affidavit in support of the instant motion for partial summary judgment, Defendant Robert Norton is in default of the July 11, 2012 Promissory Note whereby he promised to pay to Plaintiff the sum of $25,000.00 upon due demand for same. To establish a prima facie case for breach of contract, it must be shown that 1) a contract existed, 2) that Plaintiff performed pursuant to the contract, 3) that Defendant failed to perform pursuant to the contract, and 4) Plaintiff incurred damages as a result of Defendant's failure to (4* perform. See Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 AD3d 1527 Dept. 2017). In the instant matter, the Promissory Note was executed by Robert Norton and his signature was notarized on July 11, 2012. See Exhibit B to Wayne Norton affidavit. The consideration given for Defendant Robert Norton's execution of the promissory note was $25,000.00 provided by Plaintiff Wayne Norton. Therefore, because Plaintiff provided the $25,000.00, Plaintiff has performed his end of the contract. Plaintiff demanded payment of the $25,000.00 on September 15, 2020 in writing. Defendant Robert Norton to the present date has not paid any of the $25,000.00 to Plaintiff. As a result, Plaintiff has suffered damages in the amount of $25,000.00. Plaintiff has suffered additional damages in the costs and fees associated with bringing legal action to collect upon the Promissory Note and is entitled to recover those costs and 8 8 of 14 FILED: ONONDAGA COUNTY CLERK 05/13/2022 02:13 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/13/2022 fees as set forth in the terms of the Promissory Note. Hooper Associates, Ltd. v. AGS Computers, Inc., 74 NY2d 487 (1989). For all of these reasons, Plaintiff's motion