Lyon v. Lyon

253 A.D.2d 415, 675 N.Y.S.2d 896, 1998 N.Y. App. Div. LEXIS 8785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 1998
• Status: Published

Opinion

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered June 20, 1997, as denied his motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs contention, the Supreme Court properly interpreted the mortgage and note by referring to the judgment of divorce and other documents (see, Restatement [Second] of Contracts §§ 210, 215, 216; see also, Nau v Vulcan Rail & Constr. Co., 286 NY 188). We agree with the Supreme Court that there are issues of fact which preclude granting summary judgment in his favor (see, Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543).

The plaintiffs contention regarding the applicability of the doctrine of judicial estoppel is without merit (cf., Douglas v Government Empls. Ins. Co., 237 AD2d 246; Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435). O’Brien, J. P., Santucci, Krausman and Goldstein, JJ., concur.