Cook v. Petito , 619 N.Y.S.2d 571 ( 1994 )

In an action for the partition and sale of a certain piece of real property, the defendants Linda Petito and the estate of Salvatore Petito appeal from a judgment of the Supreme Court, Nassau County (Saladino, J.), dated July 15, 1993, which directed the partition and sale of the property.

Ordered that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

"A partition action, although statutory, is equitable in nature and the court could compel the parties to do equity between themselves when adjusting the distribution of the proceeds of sale” (Oliva v Oliva, 136 AD2d 611, 612). In this case, the Supreme Court did not improvidently exercise its discretion in concluding that the parties’ claims for rent, use and occupancy of the premises, improvements, repairs, taxes, and mortgage payments offset one another and should not be factored into the distribution of the net proceeds of the sale of the property. Sullivan, J. P., Rosenblatt, Altman, Hart and Freidmann, JJ., concur.