In an action for the partition of real property, defendant appeals from an order of the Supreme Court, Suffolk County, entered October 22, 1976, which denied her motion for summary judgment. Order reversed, on the law and in the interest of justice, with $50 costs and disbursements, motion granted, and complaint dismissed. Plaintiff, the former husband of the defendant, brings this action for the partition of the former vacation home which had been acquired by them as tenants by the entirety. Pursuant to a stipulation entered on the record, and incorporated and merged into the judgment of divorce entered in the Supreme Court, New York County, on January 14, 1976, the defendant was to have possession of the subject property, with the right to lease it and to retain the rents. This action for partition was commenced by the husband four weeks later, viz., on February 10, 1976. On this record, the husband’s application for partition should be addressed to the court which determined the matrimonial litigation between the parties and which is in the best position to evaluate the equitable factors between them (see Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755). Hopkins, Acting P. J., Martuscello, Latham and Damiani, JJ., concur.