## Facts

- Joseph Kurpiel owned a parcel of real property in the Town of Huntington, Suffolk County, New York, in his sole name.
- On June 1, 1955, Joseph executed a deed conveying the property to “Joseph Kurpiel, Jenny Kurpiel and Edward Kurpiel … jointly and not as tenants in common.”
- The deed was prepared by an attorney and used express language that the grantees were to take “jointly” and “not as tenants in common.”
- Joseph and Jenny were husband and wife, and Edward was their son.
- By November 1965, a Family Court order (dated November 17, 1965) directed Joseph to “stay away from [Jenny] and the family home at all times until further order of the court.”
- Jenny and Edward remained in actual occupancy of the home; Joseph was not in physical occupancy.
- Joseph filed an action in the New York Supreme Court seeking partition of the property.
- Defendants asserted defenses including: (1) Joseph lacked actual or constructive possession because the Family Court order gave Jenny exclusive possession, and (2) Joseph and Jenny owned an undivided one-half interest as tenants by the entirety, which would bar partition.
- Joseph moved under CPLR 3211(b) and CPLR 3212 to strike the defenses and for summary judgment; defendants cross-moved for summary judgment.

## Issues

1. Does a Family Court “stay away” order that regulates access to the home deprive a titled co-owner of the right to maintain a partition action by eliminating actual or constructive possession?
2. Does an attorney-drafted deed conveying property to a husband, wife, and child “jointly and not as tenants in common” create a joint tenancy among all three grantees (rather than a tenancy by the entirety between the spouses that would defeat partition)?

## Decision

- The court granted Joseph’s motion to strike the defenses and for summary judgment and denied defendants’ cross-motion for summary judgment.
- The Family Court order did not determine title or the right to possession, and the Family Court lacked jurisdiction to decide ownership or possessory rights in this context; the order therefore did not bar Joseph’s partition action.
- Although defendants were in actual possession, Joseph’s record title provided a sufficient right to possession to maintain partition.
- The deed’s language—especially in an attorney-prepared instrument—showed an intent to create a joint tenancy among Joseph, Jenny, and Edward, not a tenancy by the entirety in an undivided one-half.

## Legal Principles

- A cotenant’s right to seek partition may rest on the right to possession that flows from record title, even when another cotenant is in actual occupancy.
- A Family Court stay-away order that directs a party to avoid the home, without adjudicating title or ultimate possessory rights, does not extinguish a titled owner’s ability to bring partition; the Family Court’s role in such an order does not include determining ownership or the legal right to possession.
- Clear deed language can overcome the statutory presumption favoring a tenancy in common; an express grant to multiple grantees “jointly and not as tenants in common,” particularly when drafted by an attorney, manifests intent to create a joint tenancy.
- Prior decisions treating the word “jointly” as nontechnical in informal instruments (such as wills not drafted by legally trained drafters) do not control where an attorney-prepared deed uses clarifying language negating a tenancy in common.

## Conclusion

In *Kurpiel v. Kurpiel*, the Supreme Court held that a Family Court stay-away order did not deprive a titled co-owner of the right to sue for partition because it did not decide ownership or the legal right to possession, and the plaintiff’s record title supplied a sufficient right to possession; the court also held that an attorney-drafted deed conveying the property to three grantees “jointly and not as tenants in common” created a joint tenancy, leaving no tenancy-by-the-entirety bar to partition.


Kurpiel v. Kurpiel, 271 N.Y.S.2d 114 (1966)