CPLR R. 3212
(a) Time; kind of action [120-day rule]
(f) Facts unavailable to opposing party
Madison Third Bldg. Cos., LLC v Berkey, 2009 NY Slip Op 05686 (App. Div., 1st, 2009)
Inasmuch as defendants' attorney reasonably interpreted a court
attorney's oral directive at a post-note of issue conference that
summary judgment motions "be made in accordance with the CPLR," to mean
that the time to make a summary judgment motion had been extended from
the 45 day deadline set in two pre-note of issue conference orders to
the 120-day outer limit permitted by CPLR 3212(a), such excuse was
reasonable under the
circumstances and the motion should have been considered on its merits.
I put the whole thing in bold.
Tedesco v Tedesco, 2009 NY Slip Op 05767 (App. Div., 2nd, 2009)
The appellant Riccardo Tedesco, Sr., is a plaintiff in Action Nos. 1
and 3, and a defendant in Action 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 the Supreme Court that Tedesco, Sr., cannot now be heard to
claim ownership of the properties in question, having denied ownership
of any real property in prior judicial proceedings that took place
after the alleged real estate transactions at issue here. The doctrine
of judicial estoppel [*2]precludes a
party from taking a position in one legal proceeding which is contrary
to that which he or she took in a prior proceeding, simply because his
or her interests have changed (see Festinger v Edrich, 32 AD3d 412).
The doctrine will be applied where the party has secured a judgment in
his or her favor by adopting a certain position in the prior proceeding
(see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669).
Moreover, the issue of judicial estoppel was previously decided
on the merits by the Supreme Court in an order dated December 7, 2006 (see Tedesco v Tedesco, 13 Misc 3d 1245[A]).
Tedesco, Sr.'s appeal from that order was dismissed for failure to
perfect. The dismissal of that appeal constituted an adjudication on
the merits with respect to all issues which could have been reviewed
therein (see Tri-State Sol-Aire Corporation v Martin Assoc., Inc., 7 AD3d 514). The court's finding of judicial estoppel is therefore law of the case (see Brownrigg v New York City House. Auth., 29 AD3d 721).Tedesco, Sr.'s contention that the motion for summary judgment
was premature is without merit. He failed to offer any evidentiary
basis to suggest that discovery may lead to relevant evidence. His hope
and speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion
(see Brewster v Five Towns Health Care Realty Corp., 59 AD3d 483; Conte v Frelen Assoc., LLC, 51 AD3d 620).
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