Kupferman and Smith, JJ., dissent in a memorandum by Smith, J., as follows: The motion court directed a sale of the property without a hearing at which the parties could advance their contentions. For this reason, I dissent and would remand for a hearing.
This is an action for a judicial partition of property known as 932 8th Avenue in New York County brought pursuant to RPAPL article 9. Plaintiffs and defendant are owners of the property as tenants in common. It appears that plaintiffs’ sons occupy three apartments in the premises while defendant occupies the other apartment and operates a bar on the premises.
The motion court, in an interlocutory judgment, directed a sale of the property. Defendant contends, inter alia, that said judgment, made without a hearing, violates her right to due process under the State and Federal Constitutions.
RPAPL 915 reads as follows: "The interlocutory judgment shall determine the right, share or interest of each party in the property, as far as the same has been ascertained. Where the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the interlocutory judgment, except as otherwise *296expressly prescribed in this article, shall direct that the property or the part so circumstanced be sold at public auction. Otherwise, an interlocutory judgment in favor of the plaintiff shall direct that partition be made between the parties according to their respective rights, shares and interests and shall designate three reputable and disinterested freeholders, as commissioners to make the partition so directed.” (Emphasis supplied.)
Here, there has been no showing that partition cannot be made without great prejudice to the owners. Moreover, defendant has disputed the plaintiffs’ allegation of an impasse over the operation and control of the premises.
"In partition actions, an interlocutory judgment is entered in the first instance, authorizing certain proceedings which terminate in a final judgment. The application for the interlocutory judgment is made after the trial of the issues.” (24 NY Jur 2d, Cotenancy and Partition, § 205.) Here, the plaintiffs’ motion for summary judgment is a request for an interlocutory judgment. Defendant is entitled to a hearing.