Eccles v. Hutchinson
| Decision Date | 27 February 1961 |
| Citation | 28 Misc.2d 412,213 N.Y.S.2d 122 |
| Parties | Ethel Burchard ECCLES, Plaintiff, v. Mary HUTCHINSON, Defendant. |
| Court | New York Supreme Court |
Joseph H. Flynn, Bay Shore, for plaintiff.
Sidney R. Siben, Bay Shore, for defendant.
This motion for summary judgment and an assessment of damages is brought by the plaintiff in an ejectment action. Plaintiff is the record owner of the subject premises by virtue of a deed from her father, Alfred Hutchinson, dated March 20, 1954 and recorded March 23, 1954. The deee bears no documentary stamps and contains the legend, 'no stamps necessary'. At the time of this conveyance defendant was married to Alfred Hutchinson and resided in the subject premises. Shortly thereafter, in August of 1954, Alfred Hutchinson procured a Florida divorce from defendant. Notwithstanding the divorce, defendant continues to reside in the subject premises despite efforts by the plaintiff to oust her. A summary proceeding brought to evict her in the Justice Court of the Town of Islip in 1958 was dismissed when defendant asserted a claim of title.
This action was instituted on May 12, 1960. As a separate and affirmative defense in her answer, defendant pleads that another suit is pending in the Suffolk County Court between the same parties for the same relief. Plaintiff's moving papers, however, contain an order of that Court, dated December 6, 1960, dismissing that action for want of jurisdiction of the subject matter. It is well settled that in order for a pending action to be successfully pleaded in abatement of one subsequently commenced, the court before which the former action is pending must have jurisdiction of the subject matter of the suit. (Carmody-Waite, N.Y.Prac., V. 2, Ch. 12, § 5). This defense must therefore fall.
In her affidavits in opposition to this motion, defendant maintains that the remedy of summary judgment is not available in an ejectment action, citing Gorman v. Valentino, 263 A.D. 886, 33 N.Y.S .2d 255. This authority is no longer controlling since the revision of the summary judgment rules, effective March 1, 1959, in which the remedy was made available in any type of civl action except matrimonial actions.
In an attempt to raise factual issues, the defendant also alleges, inter alia, that she has never received any support from the said Alfred Hutchinson; that he deserted her prior to obtaining the Florida divorce; that said divorce was ex parte and she received no notice of the action; that she is entitled to support from her husband prusuant to Civil Practice Act, § 1170-b whether the Florida divorce is valid or not, and that the conveyance from Alfred Hutchinson to his daughter, the plaintiff herein, was fraudulently made, without consideration, to deprive her of reaching any assets of Alfred Hutchinson to enforce his marital obligations. All but the last of these assertions can be disposed of summarily on the ground that they are not relevant to an action for ejectment brought by the daughter of defendant's allegedly errant husband. Defendant may not attack the validity of the Florida divorce, or seek support, in an ejectment action to which Alfred Hutchinson is not a party. However, since the plaintiff's right to maintain ejectment rests on the strength of her title, a more perplexing problem is defendant's assertion, raised for the first time on this motion, that the deed from Alfred Hutchinson to his daughter, the plaintiff herein, was a fraudulent conveyance within the meaning and intent of Article 10 of the New York Debtor and Creditor Law.
While it is true that a defendant opposing a motion for summary judgment is not precluded from showing evidence in her affidavit of a defense not pleaded in her answer (Cardinal Lumber Co . v. Lincoln Park Builders Supply, Inc., 8 A.D.2d 839, 190 N.Y.S.2d 207), it is a corollary rule that the pleader in opposition must show evidentiary facts, not surmise, conjecture or suspicion. Shapiro v. Health Insurance Plan of Greater New York, 7 N.Y.2d 56, 194 N.Y.S.2d 509. It is...
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