Fisch v. Aiken

Appellate Division of the Supreme Court of New York

Fisch v. Aiken

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

Appellate Division of the Supreme Court of the State of New York·Decided July 20, 1998·Published·Cited by 9 cases

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 [557] 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.

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—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 [557] 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.

Fisch v. Aiken, 252 A.D.2d 556, 675 N.Y.S.2d 885, 1998 N.Y. App. Div. LEXIS 8399 (N.Y. Ct. App. 1998).

Pincite

252 A.D.2d 556 (Fisch v. Aiken) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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