Summary
applying laches where, "during the period in which plaintiff delayed commencement of the action, the defendant changed her position to her financial detriment" by spending thousands of dollars over the course of five years on improving real property she believed to be hers
Summary of this case from T.D. Bank, N.A. v. JP Morgan Chase Bank, N.A.Opinion
May 2, 1994
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the order is affirmed, with costs.
In the order appealed from, the Supreme Court treated the defendant's motion as one for summary judgment, and dismissed the complaint on the ground that it was barred by laches and the plaintiff's unclean hands. We find that the Supreme Court did not err in treating the defendant's motion as one for summary judgment. While generally a court's election to treat a pre-answer CPLR 3211 motion as a motion pursuant to CPLR 3212 requires adequate notice to the parties (see, Rich v. Lefkovits, 56 N.Y.2d 276; DeSanctis v. Laudeman, 169 A.D.2d 1026), this rule is inapplicable when it appears from a reading of the parties' papers that they deliberately are charting a summary judgment course by laying bare their proof (see, Four Seasons Hotels v Vinnik, 127 A.D.2d 310, 320). In the case at bar, viewing the papers in their entirety, it can fairly be said that the parties laid bare their proof, submitting extensive extrinsic documentary evidence and evidentiary affidavits setting forth the entire chronology and course of events leading up to this action, and thus charted a summary judgment course (see, Singer v. Boychuk, 194 A.D.2d 1049; De La Poer v. Salomon Bros., 193 A.D.2d 568; Mazurick v. Chalos, 172 A.D.2d 805; Kodack v. Pratt, 151 A.D.2d 551). Indeed, there can be little doubt that both the plaintiff and the defendant "'submit[ed] facts and arguments clearly indicating that they were "deliberately charting a summary judgment course"'" (Deborah Intl. Beauty v. Quality King Distribs., 175 A.D.2d 791, 792). Therefore, contrary to the plaintiff's contention, the court was entitled to search the record for the existence of material issues of fact and to determine whether the plaintiff was entitled to the relief requested.
At bar, the plaintiff waited more than five years after the youngest child reached majority or was earlier emancipated, to enforce the terms of the divorce judgment, during which time the defendant and her new husband expended $18,000 for repairs and improvements to the premises.
Laches is applicable where there has been a considerable delay resulting in a change of position, intervention of equities, loss of evidence, or other disadvantages (see, Reed v. Reed, 195 A.D.2d 451; Thurmond v. Thurmond, 155 A.D.2d 527, 529). Here, during the period in which the plaintiff delayed commencement of this action, the defendant changed her position to her financial detriment. Moreover, under the circumstances of this case, the equities clearly intervene in the defendant's favor (see, Cotumaccio v. Cotumaccio, 171 A.D.2d 723, 724; Thurmond v Thurmond, supra).
Accordingly, the order appealed from is affirmed. Rosenblatt, J.P., Lawrence, Altman and Goldstein, JJ., concur.