| Tedesco v Tedesco |
| 2009 NY Slip Op 05767 [64 AD3d 583] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Riccardo Tedesco, Sr., et al., Appellants, v RiccardoTedesco, Jr., et al., Respondents. (Action No. 1.) Lydia Tedesco Nioras, Respondent, v RiccardoTedesco, Sr., Appellant. (Action No. 2.) Riccardo Tedesco, Sr., et al., Appellants, v LydiaTedesco et al., Respondents. (Action No. 3.) |
—[*1] McCarthy Fingar, LLP, White Plains, N.Y. (Joel M. Aurnou of counsel), for respondentsRiccardo Tedesco, Jr., and Lydia Tedesco Nioras.
In three related actions to determine ownership of real property, the plaintiffs in action No.1, the defendant in action No. 2, and the plaintiffs in action No. 3 appeal from (1) a decision ofthe Supreme Court, Westchester County (Loehr, J.), dated January 18, 2008, and (2) an order ofthe same court dated February 21, 2008, which granted the motion of the defendants in actionNo. 1, the plaintiff in action No. 2, and the defendants in action No. 3 for summary judgmentdismissing the complaint in action No. 1, dismissing the answer in action No. 2, and dismissingthe complaint in action No. 3.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents Riccardo Tedesco, Jr., and LydiaTedesco Nioras.
The appellant Riccardo Tedesco, Sr., is a plaintiff in action Nos. 1 and 3, and a defendant inaction No. 2. The three actions, which were joined for trial, concern a dispute between Tedesco,Sr., and two of his children concerning the ownership of certain real property. We agree with theSupreme Court that Tedesco, Sr., cannot now be heard to claim ownership of the properties inquestion, having denied ownership of any real property in prior judicial proceedings that tookplace after the alleged real estate transactions at issue here. The doctrine of judicial estoppelprecludes a [*2]party from taking a position in one legalproceeding which is contrary to that which he or she took in a prior proceeding, simply becausehis or her interests have changed (seeFestinger v Edrich, 32 AD3d 412 [2006]). The doctrine will be applied where the partyhas secured a judgment in his or her favor by adopting a certain position in the prior proceeding(see Matter of One Beacon Ins. Co. vEspinoza, 37 AD3d 607 [2007]; Matter of State Farm Mut. Auto. Ins. Co. v Allston,300 AD2d 669 [2002]).
Moreover, the issue of judicial estoppel was previously decided on the merits by theSupreme Court in an order dated December 7, 2006 (see Tedesco v Tedesco, 13 Misc 3d1245[A], 2006 NY Slip Op 52353[U] [2006]). Tedesco, Sr.'s appeal from that order wasdismissed for failure to perfect. The dismissal of that appeal constituted an adjudication on themerits with respect to all issues which could have been reviewed therein (see Tri-State Sol-Aire Corp. v MartinAssoc., 7 AD3d 514 [2004]). The court's finding of judicial estoppel is therefore law ofthe case (see Brownrigg v New YorkCity Hous. Auth., 29 AD3d 721 [2006]).
Tedesco, Sr.'s contention that the motion for summary judgment was premature is withoutmerit. He failed to offer any evidentiary basis to suggest that discovery may lead to relevantevidence. His hope and speculation that evidence sufficient to defeat the motion might beuncovered during discovery was an insufficient basis to deny the motion (see Brewster v Five Towns Health CareRealty Corp., 59 AD3d 483 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2008]). Skelos, J.P.,Angiolillo, Chambers and Lott, JJ., concur.