Fisch v. Aiken

252 A.D.2d 556, 675 N.Y.S.2d 885, 1998 N.Y. App. Div. LEXIS 8399

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1998
• Status: Published

Opinion

—In a special proceeding pursuant to CPLR 5206 (e) to direct the sale of a homestead, the appeal is from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered June 23, 1997, which granted the petition:

Ordered that the order is affirmed, with costs.

It is well settled that in a special proceeding, where no triable issues of fact are raised, the court may make a summary determination on the pleadings and papers submitted as if a motion for summary judgment were before it (see, CPLR 409 [b]; Matter of Friends World Coll, v Nicklin, 249 AD2d 393; Matter of Bahar v Schwartzreich, 204 AD2d 441).

Here, the appellant’s affidavit merely presents a feigned factual issue designed to avoid the consequences of the petitioner’s documentary evidence (see, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Capraro v Staten Is. Univ. Hosp., 245 AD2d 256; Garvin v Rosenberg, 204 AD2d 388). The Supreme Court, therefore, correctly decided the petition without a hearing.

The appellant’s remaining contentions are either without merit or are unpreserved for appellate review. O’Brien, J. P., Santucci, Krausman and Goldstein, JJ., concur.