Opinion
November 18, 1992
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to RPAPL article 9.
The facts underlying this partition action were set forth in our prior decision and order (see, Wolfe v Wolfe, 145 A.D.2d 556, supra). In view of the Supreme Court's determination that the parties never entered into an agreement to forego partition and sell the property which is the subject of this action, the order directing the sale of the property must be reversed. In the absence of such an agreement, the plaintiff's right to partition of the property remains governed by statute (RPAPL 901 et seq.), and before partition or a sale may be directed, "such issues as the interests of the parties and whether partition may be had without great prejudice should first be determined" (Grossman v Baker, 182 A.D.2d 1119; RPAPL 915; George v Bridbord, 113 A.D.2d 869). While the record establishes that the plaintiff Kenneth Wolfe and his brother, the defendant Daniel Wolfe, own the subject property as tenants in common, their disagreements as to their respective interests, rights, and share in this property remain unresolved, and no accounting has been conducted "to ensure that the parties' rights are fixed in such a manner that a decree `may work full and complete justice between [them]'" (Grossman v Baker, supra, at 1119, quoting from Grody v Silverman, 222 App. Div. 526, 530; George v Bridbord, supra; Worthing v Cossar, 93 A.D.2d 515). Accordingly, the order appealed from directing sale of the property without, inter alia, determining the parties' respective rights and interests was premature and violated the requirements of RPAPL 915. Harwood, J.P., Lawrence, Eiber and Miller, JJ., concur.