Opinion
July 8, 1985
Appeal from the Supreme Court, Kings County (Rader, J.).
Order modified, by deleting therefrom the third decretal paragraph which ordered the filing of a note of issue within 60 days, and substituting therefor a provision that the parties, if they be so advised, may conduct further discovery. As so modified, order affirmed, insofar as appealed from, without costs or disbursements.
Appellant's contention that the instant action for a partition and accounting is barred by the Statute of Limitations is without merit. As an alleged tenant in common of the property, plaintiff may maintain an action for partition ( see, RPAPL 901; Willis v Sterling, 224 App. Div. 647, appeal dismissed sub nom. Macomber v Sterling, 253 N.Y. 600). It is well settled that such an action by one or more cotenants is unaffected by any limitations period for as long as the cotenancy survives ( see, Rosen v. Rosen, 78 A.D.2d 911). This is because "[t]he cause of action [for partition] is a continuing one so long as the cotenancy exists" ( Dresser v Travis, 39 Misc. 358, 364, affd 87 App. Div. 632, affd 177 N.Y. 376). Moreover, there is strong support for the proposition that the same rules apply to an accounting action which accompanies the request for a partition ( see, Goergen v. Maar, 2 A.D.2d 276). Since there is no claim by appellant that the purported tenancy in common has been dissolved, the Statute of Limitations defense must fail.
Likewise, we are unpersuaded by appellant's contention that a dismissal is warranted under CPLR 3211 (a) (7) because the complaint fails to state a cause of action. Plaintiff has alleged adequate facts to give rise to an issue concerning the ownership of the property and the complaint on its face is sufficient to establish a prima facie case for partition and an accounting. These allegations need not be fully substantiated by plaintiff at this point, for the branch of appellant's motion which was to dismiss for failure to state a cause of action is not in the nature of a CPLR 3212 application for summary judgment, nor did Special Term treat it as such ( see, CPLR 3211 [c]).
Moreover, we do not agree with appellant's contention that a deed of the subject property to another party in 1940 conclusively establishes that plaintiff's grandfather had no ownership interest in the property when he attempted to devise it to plaintiff and his cotenants in 1949. Plaintiff has demonstrated that records or documents of a post-1940 conveyance of the realty to his grandfather may exist. Thus, any dismissal of the complaint would be premature, as the parties should be given the opportunity to conduct further discovery. Therefore, while Special Term properly denied that branch of the motion which was to dismiss, the court erred in ordering that a note of issue be filed within 60 days. We modify the order of Special Term accordingly. Mangano, J.P., Thompson, Brown and Kunzeman, JJ., concur.