In Taylor et al. v. Lambert, 279 Pa. 514, 124 A. 169, this court held that a restriction in a deed prohibiting the erection on a lot of ground of "a building or buildings designed for any other purpose than a private dwelling house" excluded the erection of an apartment house on such a lot.Summary of this case from Pocono Manor Assn v. Allen
Nos. 2007-06989, 2007-06990.
December 2, 2008.
In an action, inter alia, to recover damages for conversion of certain personal property (action No. 1), which was transferred to the Supreme Court, Westchester County, from the Surrogate's Court, Westchester County, (1) Mark Taylor and Craig Taylor, the plaintiff's in action No. 1, appeal, as limited by their brief, from so much of an order of the Surrogate's Court, Westchester County (Scarpino, S.), dated June 19, 2007, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint in that action, and (2) in a related action which was also transferred, Mark Taylor, Craig Taylor, and Marilyn Miller, the plaintiff's in action No. 2, appeal, as limited by their brief, from so much of a second order of the same court, also dated June 19, 2007, as granted that branch of the motion of the defendant Joanne Taylor which was for summary judgment dismissing the complaint insofar as asserted against her in that action.
William G. Sayegh, P.C., Carmel, N.Y. (Robert A. Weis of counsel), for respondents in Action 1.
The Penichet Firm, P.C., White Plains, N.Y. (Jeanna M. Alberga of counsel), for Joanne Taylor, respondent in Action 2.
Before: Ritter, J.P., Florio, Miller and Dillon, JJ. concur.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
In action No. 1, the defendants Sportsman's Den, Inc., and Robert Steckler made a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). In opposition, the plaintiff's failed to raise a triable issue of fact. Accordingly, the Surrogate's Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint in action No. 1.
In action No. 2, the defendant Joanne Taylor, the second wife of the decedent, Paul Taylor, made a prima facie showing that the bulk of the complaint was premised upon the plaintiff's' claim that a separation agreement executed in 1970 by the plaintiff Marilyn Miller, the decedent's first wife, and the decedent, was invalid. However, in 2005, almost two years after the decedent died, in a Surrogate's Court proceeding arising out of the administration of his estate, the plaintiff's in action No. 2 submitted a claim against the estate predicated upon the validity of the separation agreement, and obtained partial summary judgment in their favor declaring that the agreement was valid and enforceable. Accordingly, Joanne made a prima facie showing that under the doctrine of judicial estoppel, the plaintiff's cannot now challenge the validity of the agreement ( see State Farm Mut. Auto. Ins. Co. v Chandler, 35 AD3d 588, 589-590; Douglas v Government Empls. Ins. Co., 237 AD2d 246; Prudential Home Mtge. Co. v Neildan Constr. Corp., 209 AD2d 394, 395). In opposition, the plaintiff's failed to raise a triable issue of fact. Accordingly, the Surrogate's Court properly granted Joanne's motion for summary judgment dismissing the causes of action based upon the alleged invalidity of the separation agreement. As for the remaining causes of action, Joanne also made a prima facie showing of entitlement to judgment in her favor, in response to which the plaintiff's failed to raise a triable issue of fact as to her.
The plaintiff's' remaining contentions are without merit.