Foti v. Foti
Decision Date | 07 February 2014 |
Citation | 979 N.Y.S.2d 914,2014 N.Y. Slip Op. 00835,114 A.D.3d 1207 |
Parties | Paul FOTI, Plaintiff–Appellant, v. Gina FOTI, Defendant–Respondent. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered April 4, 2012 in a divorce action. The order granted the motion of defendant for partial summary judgment determining that various real estate entities and management companies were her separate property.
Joan de R. O'Byrne, Rochester (Michael Steinberg of Counsel), for Plaintiff–Appellant.
Kaman, Berlove, Marafioti, Jacobstein & Goldman LLP, Rochester (Michael Paul of Counsel), for Defendant–Respondent.
In this divorce action, defendant moved for partial summary judgment determining that various real estate entities and management companies (hereafter, entities) were her separate property. We agree with plaintiff that Supreme Court erred in granting the motion. Although defendant established that her father gifted the entities to her as separate property ( see generally Allen v. Allen, 263 A.D.2d 691, 692, 693 N.Y.S.2d 708), there is an issue of fact whether defendant thereafter commingled her interests in the entities with marital property ( see generally Richter v. Richter, 77 A.D.3d 1470, 1471, 908 N.Y.S.2d 518; Haas v. Haas, 265 A.D.2d 887, 888, 695 N.Y.S.2d 644). Here, the parties filed a joint federal tax return in which defendant reported her interest in the entities as tax losses, and “[a] party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and defendant's motion is denied.
To continue reading
Request your trial-
Johnston v. Nakis
...accounts was reported to the federal and state taxing authorities on joint tax returns. Defendant relies on Foti v. Foti, 114 A.D.3d 1207, 979 N.Y.S.2d 914 (4th Dept.2014). This reliance is misplaced, however.First, defendant cannot now avoid his stipulations at trial in regard to the Sun L......
-
Devorah H. v. Steven S.
...“[a] party to litigation may not take a position contrary to a position taken in an income tax return” (see also, Foti v. Foti, 114 A.D.3d 1207, 979 N.Y.S.2d 914 [4th Dept.2014] ; Sayers v. Sayers, 129 A.D.3d 1519, 11 N.Y.S.3d 760 [4th Dept.2015] ; Ponorovskaya v. Stecklow, 45 Misc.3d 597, ......
-
Sayers v. Sayers
...and counsel fees. We note at the outset that, while we agree with plaintiff that Supreme Court misapplied our holding in Foti v. Foti, 114 A.D.3d 1207, 979 N.Y.S.2d 914 in denying that part of the motion seeking a downward modification of his maintenance obligation, the error is of no momen......
- Brown & Brown, Inc. v. Theresa A. Johnson & Lawley Benefits Grp., LLC