Rand v. Rand

Appellate Division of the Supreme Court of New York

Rand v. Rand

201 A.D.2d 403, 607 N.Y.S.2d 660, 1994 N.Y. App. Div. LEXIS 1487

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

DecidedFebruary 22, 1994

StatusPublished

This text of 201 A.D.2d 403 (Rand v. Rand) 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

Rand v. Rand, 201 A.D.2d 403, 607 N.Y.S.2d 660, 1994 N.Y. App. Div. LEXIS 1487 (N.Y. Ct. App. 1994).

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Opinion

Order, Supreme Court, Suffolk County (Jack Cannavo, J.), entered March 25, 1992, which denied plaintiff’s motion for a stay of all further actions or proceedings affecting the residence she had shared with her deceased husband, unanimously affirmed, without costs.

While inconsistent pleadings are permissible, in view of plaintiff’s shifting theories the denial of relief was not an abuse of discretion. Though plaintiff had the opportunity to raise her claim of ownership in her defense to the summary proceeding in District Court and in her initial stay application in Supreme Court, she did not advance any such claim until her service of an amended complaint containing a declaratory judgment cause of action. Plaintiff also failed to demonstrate a likelihood of success on the merits with respect to both her claim of title, the prenuptial agreement with her deceased husband granting her only the limited right to occupy the residence for a period of six months after his death, and her challenge to the validity of the testamentary trust settled by her husband’s first wife, which granted him an equitable life estate with the remainder to the first wife’s son, defendant James Rand. We note that Special Term’s determination as to the injunctive relief does not have preclusive effect with respect to the ultimate resolution of the title dispute or any question involving the imposition of a constructive trust. Concur — Sullivan, J. P., Ellerin, Asch and Tom, JJ.

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Order, Supreme Court, Suffolk County (Jack Cannavo, J.), entered March 25, 1992, which denied plaintiff’s motion for a stay of all further actions or proceedings affecting the residence she had shared with her deceased husband, unanimously affirmed, without costs.

While inconsistent pleadings are permissible, in view of plaintiff’s shifting theories the denial of relief was not an abuse of discretion. Though plaintiff had the opportunity to raise her claim of ownership in her defense to the summary proceeding in District Court and in her initial stay application in Supreme Court, she did not advance any such claim until her service of an amended complaint containing a declaratory judgment cause of action. Plaintiff also failed to demonstrate a likelihood of success on the merits with respect to both her claim of title, the prenuptial agreement with her deceased husband granting her only the limited right to occupy the residence for a period of six months after his death, and her challenge to the validity of the testamentary trust settled by her husband’s first wife, which granted him an equitable life estate with the remainder to the first wife’s son, defendant James Rand. We note that Special Term’s determination as to the injunctive relief does not have preclusive effect with respect to the ultimate resolution of the title dispute or any question involving the imposition of a constructive trust. Concur — Sullivan, J. P., Ellerin, Asch and Tom, JJ.

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Bluebook (online)

201 A.D.2d 403, 607 N.Y.S.2d 660, 1994 N.Y. App. Div. LEXIS 1487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rand-v-rand-nyappdiv-1994.