Justice Louis B. York
Bogoni moved to partial summary judgment on his claim for a partition and sale of the parties’ interest in a cooperative apartment. He claimed a physical partition was impossible and the board would not approve such alteration. Gomez sought a constructive trust claiming the apartment was purchased so that she and Bogoni’s daughter would have a place to live. She claimed Bogoni repeatedly told her the apartment was hers, she expended large sums for renovations, and argued she did not seek additional child support in lieu of having the apartment. Bogoni claimed Gomez was seeking a constructive trust to circumvent the lack of retroactivity in her child support case. The court found Bogoni failed to demonstrate entitlement to partition and judicial sale of the coop. It noted Gomez’s counterclaim asserting a constructive trust, provided an evidentiary basis to suggest that discovery may lead to relevant evidence. The court stated the right to seek partition was not absolute and may be precluded where the equities demand it. While Bogoni established a right to the relief sought, he failed to show entitlement to a partition and judicial sale of the unit at this point. The court noted questions remained regarding transfer and unjust enrichment, denying Bogoni’s motion.
