In an action for the partition of real property owned by an ex-wife, her ex-husband and his parents, the Court granted the defendants’ motion to confirm the report of the Referee that recommended that the ex-husband’s parents (“the in-laws”) receive the first $1,078,710.20 from the sale of the property. Such represented the parent’s direct monetary contributions to the acquisition and construction and improvement of a house on the subject property. The balance of any proceeds are to be paid to all four parties in equal 25% shares.

Such was held by Richmond County Supreme Court Justice Wayne M. Ozzi in the November 13, 2025, decision in Mersimovski v. Mersimovski, 2025 N.Y.L.J. LEXIS 3502.

Two years earlier, Justice Ozzi had awarded the ex-wife summary judgment declaring that she was is seized and entitled in fee to an undivided one-quarter 25% interest in the premises. Mersimovski v. Mersimovski, 2023 N.Y..Misc. LEXIS 23846 (November 28, 2023).

In 2017, during the marriage of the plaintiff and her ex-husband, the then vacant subject realty was purchased, with the couple and the plaintiff’s in-laws each having an undivided 25% interest. Thereafter, a house was constructed on the property. It was stipulated that neither the plaintiff nor her husband had made any monetary contributions to either the acquisition of the property or the construction of the house in which the couple and their children lived with the in-laws. All such expenditures were made by the in-laws.

The plaintiff moved out of the home and began her divorce action in November 2021. She started the partition action in November 2022. Apparently, divorce issues were resolved by a spring 2023 Stipulation of Settlement.

The Referee in his September 2025 report noted, “[I]t is of some note, and perhaps equitable consideration, that the plaintiff and [her husband] were divorced within the last few years, and, apparently, their respective entitlements to the premises was not an issue for decision in that recent divorce. The Referee determined that it would not be fair or equitable to award the ex-wife 25% of the full proceeds of the partition sale proceeds without reimbursing her in-laws for the acquisition and construction costs of the premises which they, and they alone, advanced.

It would not be fair or equitable to award [the wife] twenty-five percent (25%) of the full proceeds of the partition sale proceeds without reimbursing [the inlaws] for the acquisition and construction costs of the premises which they, and they alone, advanced.

Confirming the report that recommended that the in-laws receive the first $1,078,710.20 from the sale of the property, Justice Ozzi rejected the ex-wife’s defense that her interest was an unconditional gift in contemplation of the marriage. The Court noted that the plaintiff was already married when she received her interest and that the rights of the other cotenants remained unimpaired to seek partition and distribution based upon the equities among the parties,.

The Court also rejected the plaintiff’s efforts to deny or limit the reimbursement of the in-laws on the grounds that credits under RPAPL 945 are limited to rents, necessary repairs, and preservation expenses, and that improvements were largely elective and undertaken for the benefit of defendants’ extended family.

The Court confirmed the report. The credits recommended were accepted and the balance of any proceeds would be paid to all four parties in equal 25% shares.

Comment: Presumably, the divorce was granted under D.R.L. §170(7), that required that the economic issues of equitable distribution of marital property be resolved before entry ofg the Judgment of Divorce. It was not noted whether it was sufficient for the couple to resolve issues involving the home in the then-pending partition action; or whether the wife’s interest was recognized to be her separate property as a gift from her in-laws. It was not discussed whether the in-laws could have or should have attempted to intervene in the divorce action to have all issues regarding the home resolved in a single action. Would a determination in the divorce action that the wife had a 25% separate property interest (as did her husband?) preclude any issues in the partition action. In light of the November 6, 2025, decision in Justice Giacomo in his decision in Ortiz v. Kliszus, the subject of last week’s blog post, could it be argued that in the divorce action, the husband ‘virtually represented’ his parents?.

Jaime Lathrop, of Brooklyn, represented the Plaintiff ex-wife. Allyn J. Crawford, of Staten Island, represented the Defendants.