Detailed Answer
In New York, once all parties in a partition action have been served and the statutory response period has expired, you must take specific procedural steps to schedule a hearing. A partition action divides co–owned real property among owners or sells it and distributes proceeds. The process involves either obtaining a default judgment (if a defendant fails to respond) or referring the matter to a referee to conduct the hearing.
1. Confirm Service and Response Period
• Verify that every defendant was properly served per CPLR 308 (personal service), 311 (service by mail), or another authorized method.
• Ensure the 20- or 30-day response period has expired without an answer or notice of appearance under CPLR 3012.
2. Proceeding on Default (No Answer)
If a defendant fails to answer:
- File a motion for default judgment under CPLR 3215.
– Submit an affidavit of service and proof of the failure to appear.
– Provide a proposed default judgment of partition and, if sale is requested, a proposed order of sale. - Once the court signs the default judgment, the clerk issues a referee’s commission. That referee then schedules the partition hearing to receive evidence, value the property, and report findings.
3. Contested Action (Answer Filed)
When all parties have answered, proceed as follows:
- Refer the case to a referee
• By Agreement: File a stipulation and proposed Order of Reference under RPAPL § 903 identifying your chosen referee and attaching its commission form.
• By Motion: If parties cannot agree, serve and file a Notice of Motion, supporting affirmation, and proposed Order of Reference under RPAPL § 904. Include the referee’s qualifications and proposed compensation. - File the Order of Reference
Once signed by the court, the county clerk issues the referee’s commission. - Schedule the Hearing
The referee must give notice of hearing to all parties at least 15 days in advance (RPAPL § 909). That notice should specify date, time, and place for taking proof and examining the property. - Serve the Hearing Notice
Serve the notice of hearing and a copy of the referee’s commission on each party and file proof of service with the court.
4. At the Hearing
The referee conducts an on-site inspection (if needed), takes testimony on ownership interests and property condition, and examines any accounting or partition plan. Afterward, the referee issues a written report with findings, valuations, and recommendations.
5. Court Confirmation
File a Notice of Filing of the referee’s report. Parties may contest the report within 10 days. The court then schedules a confirmation hearing. After that, the court enters a final judgment of partition or sale.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Helpful Hints
- Maintain detailed service and appearance records to avoid procedural delays.
- Consider mediation before motioning for reference to reduce cost and time.
- Choose a referee experienced in real estate valuation and partition proceedings.
- Confirm local county clerk practices; some counties require electronic filing.
- Track all hearing notices and report deadlines closely to preserve rights.