Klein v. Klein

73 A.D.2d 509, 422 N.Y.S.2d 99, 1979 N.Y. App. Div. LEXIS 14238

Opinion

Judgment and order (one paper), Supreme Court, New York County, entered May 7, 1979, resettling judgment and order of the same court and Justice entered March 6, 1979, reversed, on the law, and the matter remanded to Supreme Court, New York County, for trial of the issues of fact tendered by the motion papers herein, without costs. Appeal from order, same court and Justice, entered March 30, 1979, denying reargument of the prior motion, dismissed as nonappealable, without costs. Petitioner-judgment-creditor-respondent is the estranged former second wife of respondent-appellant’s father, who is the judgment debtor. Respondent-appellant’s mother was the debtor’s first wife. Petitioner seeks to obtain possession by this third-party proceeding (CPLR 5225, subd [b]) of certain personal property held by the daughter, but claimed by petitioner to be owned by the debtor. In a 1978 deposition, the daughter stated that the property belonged to her father, against whom his then wife had claims. Later, however, she stated that the property had become hers in satisfaction of certain claims against her father. It cannot be said that the two conflicting statements, taken together, constitute an admission against the daughter’s interest. The issue of which statement is true is a question of fact which may not be decided upon papers alone. (CPLR 409, subd [b].) A trial is necessary (CPLR 410), and we remand for that purpose. Concur—Fein, J. P., .Sandler, Markewich and Silverman, JJ.