From Casetext: Smarter Legal Research

Lapkin v. Lapkin

Appellate Division of the Supreme Court of New York, First Department
Feb 6, 1996
224 A.D.2d 199 (N.Y. App. Div. 1996)

Summary

granting plaintiff leave to amend complaint "to add a cause of action for equitable estoppel"

Summary of this case from Union Carbide Corp. v. Montell N.V.

Opinion

February 6, 1996

Appeal from the Supreme Court, New York County (David Saxe, J.).


Summary judgment cannot be granted solely on the basis of the defendant father-in-law's denial of having orally promised to support plaintiff and her children. Such denial serves only to raise an issue of credibility. Moreover, it is at variance with a long history of support. Defendants' assertion of the statute of frauds as a bar to this action is premature prior to discovery. Defendants' own records may contain a writing sufficient to satisfy the statute. Nor can it be determined at this stage whether the statute is rendered inapplicable by partial performance.

Given the absence of prejudice since the claim arises out of the same set of facts originally alleged, leave to amend the complaint to include a claim of equitable estoppel was properly granted. Defendants were or should have been alerted to the claim from the outset ( see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959; Schrader v. Carney, 180 A.D.2d 200, 208).

Concur — Murphy, P.J., Sullivan, Ellerin, Ross and Mazzarelli, JJ.


Summaries of

Lapkin v. Lapkin

Appellate Division of the Supreme Court of New York, First Department
Feb 6, 1996
224 A.D.2d 199 (N.Y. App. Div. 1996)

granting plaintiff leave to amend complaint "to add a cause of action for equitable estoppel"

Summary of this case from Union Carbide Corp. v. Montell N.V.
Case details for

Lapkin v. Lapkin

Case Details

Full title:DONNA LAPKIN, Individually and on Behalf of Her Infant Children, JASON…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 6, 1996

Citations

224 A.D.2d 199 (N.Y. App. Div. 1996)
637 N.Y.S.2d 140

Citing Cases

Union Carbide Corp. v. Montell N.V.

Therefore, this is not a basis for dismissing UCC's claim for equitable estoppel. If Defendants later seek…