Krzeminski v. McQuillan (2026)

Case details
Full caption
Kevin Krzeminski v. Janine McQuillan
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2026
Disposition
Motion Denied
Kevin Krzeminski, Plaintiff, v. Janine McQuillan, Defendant., Slip Copy (2026)2026 N.Y. Slip Op. 51028(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1968285Unreported DispositionNOTE: THIS OPINION WILL NOT APPEARIN A PRINTED VOLUME. THE DISPOSITIONWILL APPEAR IN THE REPORTER.This opinion is uncorrected and will not bepublished in the printed Official Reports.Supreme Court, Westchester County, New York.Kevin Krzeminski, Plaintiff,v.Janine McQuillan, Defendant.Index No. 50130/2026|Decided on July 6, 2026Editor's Note: This document contains discussion ofunverified citations, likely generated by AI tools used by aparty or counsel. These citations are not attributable to theCourt. The unverified citations have been preserved as part ofthe official record, but links are unavailable.Attorneys and Law FirmsAttorney for Defendant :Dana Forster-Navins, Esq.DANA FORSTER-NAVINS, ESQ., P.C.220 White Plains Road, Suite 500Tarrytown, NY 10591(914) 618-4377OpinionWilliam J. Giacomo, J.*1 This is an underlying partition action for sale of propertylocated at 146 Grove Street, Tarrytown, New York 10591("property"). Plaintiff Kevin Krzeminski, acting pro se,moves for an order, pursuant CPLR 3211 (b), striking threeof defendant Janine McQuillan's affirmative defenses andstriking two counterclaims.Papers Considered NYSCEF Doc. No. 6, 7, 111. Notice of Motion/Memorandum of Law2. Memorandum of Law in OppositionFACTUAL AND PROCEDURAL BACKGROUNDPlaintiff commenced this action with the filing of a summonsand complaint on February 4, 2026. The complaint statesthat plaintiff and defendant hold title to the property as jointtenants with right of survivorship, each owning an equalundivided fifty percent interest in the property. The propertyis a single family residence. Both parties have held title to theproperty since 2014. Plaintiff is requesting the Court directthe partition of the property pursuant to RPAPL Article 9.The complaint sets forth alleged grounds for partition bysale of the property, including the allegation that the partieshave irreconcilable differences regarding the ownership,management and use of the property, among other things.Further, the exclusive occupation of the property by defendantallegedly deprives plaintiff of his right to use and enjoy hisownership interest in the property. Plaintiff is requesting that areferee be appointed to determine the reasonable rental valueof the property for the period that defendant has allegedlybeen exclusively occupying the property. The complaint alsorequests that a referee be appointed to conduct an accountingof all contributions, improvements and expenses related tothe property and to determine the amounts owed between theparties.Defendant filed an answer with counterclaims on March 2,2026. Defendant denies that partition by sale is presentlyequitable or appropriate. In relevant part, defendant allegesthat there are pending proceedings in Westchester CountyFamily Court including a family offense petition as wellas custody and support petitions. Further, the propertyserves as the residence of the minor child of the parties.As relevant here, the twelfth affirmative defense, uncleanhands, alleges that plaintiff voluntarily vacated the propertyand now seeks equitable relief while failing to contributeequitably. The thirteenth affirmative defense alleges that anequitable adjustment is required to account for all mortgagepayments and child-related expenses, among other expenses.The fourteenth affirmative defense states that defendant isentitled to equitable credit for providing housing to the parties'minor child.
Kevin Krzeminski, Plaintiff, v. Janine McQuillan, Defendant., Slip Copy (2026)2026 N.Y. Slip Op. 51028(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Defendant asserts three counterclaims. The first counterclaim,equitable accounting, alleges that defendant has paidsubstantial sums towards the property and is entitled to anaccounting and credit prior to any distribution of proceeds.In the second counterclaim, constructive trust/equitableadjustment, defendant alleges that equity requires adjustmentof the parties' interest prior to any sale, as the property wasacquired as a family residence. In the third counterclaim,defendant requests a stay of the partition action pendingresolution of the Family Court proceedings.1*2 Instant MotionPlaintiff now moves to dismiss the twelfth, thirteenth andfourteenth affirmative defenses and the first and secondcounterclaims. According to plaintiff, he did not voluntarilyvacate the property but was excluded by a temporary orderof protection issued by the Family Court. Plaintiff alsoargues that any credits for utilities and child related expenses,including housing for the minor child, are not propertycontributions under the RPAPL and the affirmative defensesand counterclaim seeking credits for those contributionsshould be stricken. Finally, according to plaintiff, thecounterclaim seeking a constructive trust should be strickenas constructive trust is not a remedy available in partitionactions.In opposition, defendant argues that her affirmative defensesand counterclaims should not be dismissed at the pleadingstage as they raise equitable issues concerning the parties'respective interest in the property. Further, according todefendant, caselaw is clear that a constructive trust may beimposed in the context of a family real estate dispute.Notably, defendant contends that many of plaintiff's citedlegal authorities do not correspond to valid caselaw.Defendant claims that she had to expend time and expenseresponding to these arguments, most of which lack areasonable legal basis. As a result, defendant is seekingsanctions against plaintiff in the form of reasonable attorneys'fees and costs incurred in responding to this motion.DISCUSSIONDismissalPursuant to CPLR 3211 (b), "[a] party may move for judgmentdismissing one or more defenses, on the ground that a defenseis not stated or has no merit." On a motion to dismissaffirmative defenses pursuant to CPLR 3211 (b), the plaintiffbears the burden of demonstrating that the defenses arewithout merit as a matter of law. Vita v New York Waste Servs.,LLC, 34 AD3d 559, 559 (2d Dept 2006). Further, "a defendantis entitled to the benefit of every reasonable intendment ofthe pleading, which is to be liberally construed." Warwick vCruz, 270 AD2d 255, 255 (2d Dept 2000). Courts have heldthat "if there is any doubt as to the availability of a defense, itshould not be dismissed." Fireman's Fund Ins. Co. v Farrell,57 AD3d 721, 723 (2d Dept 2008).Action for Partition"Under New York law, joint tenancies may be severed by thecourt-ordered partition of the property that adjusts the rightsof the parties and permits its sale if it appears that a partitioncannot be made without great prejudice to the owners." Trottav Ollivier, 91 AD3d 8, 12-13 (2d Dept 2011); RPAPL 901 [1]."The equitable remedy of partition may only be sought by aperson holding or possessing the real property as a joint tenantor tenant in common." Trotta v Ollivier, 91 AD3d at 13. "Theright to partition is not absolute, however, and while a tenantin common has the right to maintain an action for partitionpursuant to RPAPL 901, the remedy is always subject to theequities between the parties." Tsoukas v Tsoukas, 107 AD3d879, 880 (2d Dept 2013).*3 Three Affirmative Defenses and the Counterclaimalleging Equitable AccountingAn accounting is also necessary to ascertain the parties'interests in the property "ince an accounting is a necessaryincident" of a partition and sale. Khotylev v Spektor, 165AD3d 1088, 1090 (2d Dept 2018); (internal quotation marksomitted); see also Donlon v Diamico, 33 AD3d 841, 842 (2dDept 2006) ("Prior to the entry of an interlocutory judgmentdirecting the sale of the subject property, an accountingmust be made of the income and expenses of the property,including but not limited to insurance costs, taxes, rents, andmaintenance costs").Plaintiff argues that certain affirmative defenses and onecounterclaim should be dismissed as defendant improperlyseeks an accounting and credit for child related expenses,which are not subject to this partition action. Here, however,defendant primarily alleges that she made substantialfinancial and nonfinancial contributions to the acquisition,preservation, maintenance and improvement of the property.Further, there is a pending matter in the Family Court whichmay affect the custody and support arrangement of the parties'minor child who resides at the property. Courts have held that
Kevin Krzeminski, Plaintiff, v. Janine McQuillan, Defendant., Slip Copy (2026)2026 N.Y. Slip Op. 51028(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3a defense should not be stricken where there are "triable issuesof fact." Jacob Marion, LLC v Jones,168 AD3d 1043, 1045(2d Dept 2019). Under the circumstances, at this motion todismiss stage, questions of fact remain regarding the parties'respective contributions, rights and interests in the property.In addition, while it is well settled that the Family Court hasjurisdiction over the child-support matters, Courts have heldthat "equities of the co-tenants may arise from a great varietyof circumstances, it follows that the assertion of these equitiesnecessarily introduces into partition suits a great variety ofissues." Cruz v Cruz, 213 AD3d 805, 806 (2d Dept 2023)(internal quotation marks omitted). Specifically, Courts haverecognized child-related issues when considering a partitionaction. See e.g. Stressler v Stressler, 193 AD2d 728, 728(2d Dept 1993) ("Since the parties' unemancipated son, whois under the age of 21 years, still resides in the subjectresidence, we conclude that at the present time the equitiesfavor dismissal of the former husband's partition action").Accordingly, the branch of plaintiff's motion seeking todismiss these affirmatives defenses and counterclaim, isdenied.Counterclaim Seeking a Constructive Trust/EquitableAdjustmentCiting Rowe v Kingston (93 NY2d 721, 724 [1999]), plaintiffargues that the second counterclaim should be stricken asa constructive trust is not a remedy available in a partitionaction. At the outset, the citation above does not correlateto the case. Further, plaintiff misstates the holding. In Rowev Kingston, cited correctly herein as (Rowe v Kingston, 94AD3d 852, 853 [2d Dept 2012]), the Court held that a plaintiffsatisfied the elements necessary to impose a constructivetrust in a property dispute between relatives and reiteratedthat a constructive trust is an equitable remedy. Accordingly,the branch of plaintiff's motion seeking to dismiss thiscounterclaim is denied.*4 SanctionsPursuant to 22 NYCRR 130.1.1 (a), in pertinent part, thecourt, in its discretion, may award costs and reasonableattorneys' fees resulting from frivolous conduct. "Conductis frivolous within the meaning of 22 NYCRR 130-1.1,inter alia, where it is completely without merit in law oris undertaken primarily . . . to harass or maliciously injureanother. In addition to or in lieu of awarding costs, the court, inits discretion may impose financial sanctions upon any partyor attorney in a civil action or proceeding who engages infrivolous conduct." Yinuo Yin v Xiao Feng Qiao, 203 AD3d996, 997-98 (2d Dept 2022) (internal quotation marks andcitations omitted)."When determining whether the conduct undertaken wasfrivolous, the court must consider the circumstances underwhich the conduct took place and whether or not the conductwas continued when its lack of legal or factual basis wasapparent or should have been apparent." Matter of Kover, 134AD3d 64, 74 (1st Dept 2015), citing 22 NYCRR 130-1.1 (c).In defendant's opposition brief, defendant requests the Courtaward her the reasonable attorney's fees and costs incurred inresponding to this motion. According to defendant, plaintiff'smotion relies on authorities that do not correspond toreported decisions and also claims that plaintiff misstates thegoverning law.This Court has independently verified that some of plaintiff'scaselaw is either incorrectly cited or nonexistent and thatplaintiff misstates some of the holdings in the caselaw.While the Court is mindful of plaintiff's pro se status, hissubmissions have wasted both the Court and counsel's time.Courts have imposed sanctions on pro se litigants for citing tononexistent cases. See e.g. Matter of Julien v Arthur, 2026 NYApp Div Lexis 3503, *14 (2d Dept 2026) (internal citationsand quotation marks omitted) (monetary sanction of $250imposed on pro se litigant for citing to one nonexistent caseand the Court held that "[t]he failure to verify even a singleGenAI citation to a fictitious case may warrant the impositionof sanctions to account for the unnecessary waste of resourcesof the Court and of opposing parties. Further, the mere factof a party's pro se status does not excuse the party's failure tocheck the legal citations presented to the Court").Nonetheless, in its discretion, the Court declines to imposesanctions at this juncture. However, plaintiff is advised thatany future submissions containing inaccurate legal authoritiesmay warrant the imposition of sanctions.All other arguments raised on this motion and evidencesubmitted by the parties in connection thereto have beenconsidered by this court notwithstanding the specific absenceof reference thereto.CONCLUSIONAccordingly, it is hereby
Kevin Krzeminski, Plaintiff, v. Janine McQuillan, Defendant., Slip Copy (2026)2026 N.Y. Slip Op. 51028(U) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4ORDERED that plaintiff's motion to strike certainaffirmative defenses and counterclaims is denied.The parties are reminded of their compliance conferencescheduled for October 19, 2026 at 10:00 a.m. in Courtroom102.Dated: July 6, 2026*5 White Plains, New YorkHON. WILLIAM J. GIACOMO, J.S.C.All CitationsSlip Copy, 2026 WL 1968285 (Table), 2026 N.Y. Slip Op.51028(U)Footnotes1It should be noted that defendant has not cross-moved for any relief.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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