Cadlerock, L.L.C. v. Renner

Appellate Division of the Supreme Court of New York

Cadlerock, L.L.C. v. Renner

105 A.D.3d 475, 963 N.Y.S.2d 90

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 2013

StatusPublished

This text of 105 A.D.3d 475 (Cadlerock, L.L.C. v. Renner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cadlerock, L.L.C. v. Renner, 105 A.D.3d 475, 963 N.Y.S.2d 90 (N.Y. Ct. App. 2013).

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Opinion

—Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 15, 2012, which denied defendant’s motion for summary judgment, and plaintiffs cross motion to strike defendant’s affirmative defense of equitable estoppel and for summary judgment, unanimously modified, on the law, the cross motion granted, the matter remanded for a determination of attorneys’ fees and expenses, and otherwise affirmed, without costs.

[476]*476In this action to recover on a promissory note, we had found an issue of fact as to whether the action is barred as a result of equitable estoppel arising from plaintiffs failure until commencement of the action in April 2008 to seek recovery of arrears since the January 2003 sale of the cooperative unit that the note financed (72 AD3d 454 [2010]). Even if, arguendo, silence is sufficient to support an estoppel, we find that, on this second motion for summary judgment after discovery, defendant failed to demonstrate that he suffered prejudice as a result of plaintiffs inaction. We disagree with the motion court’s perception that defendant misunderstood the question about prejudice posed to him at his deposition, as well as with its conclusion that his failure to articulate any change in position resulting from plaintiffs inaction nevertheless constituted prejudice (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1st Dept 1985]).

Concur—Mazzarelli, J.E, Acosta, Renwick, Richter and Gische, JJ.

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—Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 15, 2012, which denied defendant’s motion for summary judgment, and plaintiffs cross motion to strike defendant’s affirmative defense of equitable estoppel and for summary judgment, unanimously modified, on the law, the cross motion granted, the matter remanded for a determination of attorneys’ fees and expenses, and otherwise affirmed, without costs.

[476]*476In this action to recover on a promissory note, we had found an issue of fact as to whether the action is barred as a result of equitable estoppel arising from plaintiffs failure until commencement of the action in April 2008 to seek recovery of arrears since the January 2003 sale of the cooperative unit that the note financed (72 AD3d 454 [2010]). Even if, arguendo, silence is sufficient to support an estoppel, we find that, on this second motion for summary judgment after discovery, defendant failed to demonstrate that he suffered prejudice as a result of plaintiffs inaction. We disagree with the motion court’s perception that defendant misunderstood the question about prejudice posed to him at his deposition, as well as with its conclusion that his failure to articulate any change in position resulting from plaintiffs inaction nevertheless constituted prejudice (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1st Dept 1985]).

Concur—Mazzarelli, J.E, Acosta, Renwick, Richter and Gische, JJ.

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Bluebook (online)

105 A.D.3d 475, 963 N.Y.S.2d 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cadlerock-llc-v-renner-nyappdiv-2013.

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