Green Harbour Homeowners Ass'n, Inc. v. Ermiger

• Decision Date: 07 May 2015
• Docket Number: 519151
• Citation: 8 N.Y.S.3d 705,128 A.D.3d 1142,2015 N.Y. Slip Op. 03899
• Parties: GREEN HARBOUR HOMEOWNERS ASSOCIATION, INC., Appellant, v. Kenneth ERMIGER, Respondent. (And a Third–Party Action.).
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1142

8 N.Y.S.3d 705

2015 N.Y. Slip Op. 03899

GREEN HARBOUR HOMEOWNERS ASSOCIATION, INC., Appellant

v.Kenneth ERMIGER, Respondent.

(And a Third–Party Action.).

519151

Supreme Court, Appellate Division, Third Department, New York.

May 7, 2015.

Muller, Mannix & Reichenbach, Glens Falls (Brian S. Reichenbach of counsel), for appellant.

Bartlett, Pointiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, ROSE and DEVINE, JJ.

Opinion

PETERS, P.J.

Appeal from an order of the Supreme Court (Krogmann, J.), entered March 20, 2014 in Warren County, which, among other things, granted defendant's motion for partial summary judgment.

This appeal is the latest in an extensive history of litigation surrounding the Green Harbour subdivision and other related real property interests in the Town of Lake George, Warren County (see Green Harbour Homeowners' Assn., Inc. v. Chicago Tit. Ins. Co., 74 A.D.3d 1655, 905 N.Y.S.2d 304 [2010], lv. denied 15 N.Y.3d 712, 2010 WL 4116983 [2010], 72 A.D.3d 1186, 898 N.Y.S.2d 302 [2010], 67 A.D.3d 1116, 889 N.Y.S.2d 687 [2009], 50 AD3d 1199, 855 N.Y.S.2d 295 [2008] ; Black v. Green Harbour Homeowners' Assn., Inc., 37 A.D.3d 1013, 829 N.Y.S.2d 764 [2007] ; Black v. Green Harbour Homeowners' Assn., Inc., 19 A.D.3d 962, 798 N.Y.S.2d 753 [2005] ; Green Harbour Homeowners' Assn., Inc. v. G.H. Dev. & Constr., Inc., 14 A.D.3d 963, 789 N.Y.S.2d 319 [2005] ; Matter of Green Harbour Homeowners' Assn. v. Town of Lake George Planning Bd., 1 A.D.3d 744, 766 N.Y.S.2d 739 [2003] ; Green Harbour Homeowners' Assn. v. G.H. Dev. & Constr., 307 A.D.2d 465, 763 N.Y.S.2d 114 [2003], lv. dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204, 801 N.E.2d 425 [2003] ). Although the facts of the instant controversy are fully set forth in our prior decisions in this action, they bear briefly repeating here. In 1994, Gene Black and third-party defendant Green Harbour–Cooper Point Acres (hereinafter collectively referred to as Black)¹ executed a deed conveying to plaintiff several parcels of real property constituting the common areas of phase three of the Green Harbour subdivision, but excepting and reserving specific lots and townhouse properties to Black. Although the parties allegedly intended to list 40 lots as excepted from the conveyance, two of the lots—21 and 22 Ridgeview Lane—were not included in the list of excepted lots. Black subsequently sold 33 of the excepted lots and, in 2002, executed a deed that purported to convey the remaining seven lots, including 21 and 22 Ridgeview Lane, to defendant.

Plaintiff commenced this action against defendant in June 2006 seeking, among other things, to quiet title to 21 and 22 Ridgeview Lane, as well as injunctive relief with regard to several of the remaining five lots conveyed to him in the 2002 deed. In 2007, Supreme Court granted defendant partial summary judgment on his counterclaim for reformation of the 1994 deed to except 21 and 22 Ridgeview Lane from the conveyance. Upon appeal, we reversed that determination on the ground that the counterclaim was barred by the applicable statute of limitations (50 A.D.3d at 1200–1201, 855 N.Y.S.2d 295 ). Defendant thereafter successfully moved for partial summary judgment on his third-party claim against Black for breach of warranty of title, but this Court again reversed, finding that summary judgment was premature inasmuch as defendant had yet to establish that he had yielded possession to a paramount title in the subject lots or lost possession of the lots by process of law (72 A.D.3d at 1188, 898 N.Y.S.2d 302 ). In both such appeals, we noted that “the doctrine of judicial estoppel would potentially preclude plaintiff from prevailing on the merits” of its claims (id. at 1188 n. 3, 898 N.Y.S.2d 302 ; 50 A.D.3d at 1200 n. 2, 855 N.Y.S.2d 295 ).

Most recently, defendant moved for partial summary judgment seeking a declaration that plaintiff is both equitably and judicially estopped from contesting his ownership in the seven lots he allegedly acquired by the 2002 deed, that he has the right to construct four townhouses in such locations as may be approved by the Town Planning Board and that he holds good title to the real property presently occupied by a townhouse unit on lot 20 Lookout Mountain Road. Supreme Court granted the motion, and plaintiff appeals.

First addressing plaintiff's procedural contentions, we are unpersuaded that Supreme Court erred by entertaining a second summary judgment motion by defendant. “While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion” (Inter–Power of N.Y. v. Niagara Mohawk Power Corp., 259 A.D.2d 932, 933, 686 N.Y.S.2d 911 [1999], lv. denied 93 N.Y.2d 812, 695 N.Y.S.2d 540, 717 N.E.2d 699 [1999] [citation omitted]; see Foster v. Kelly, 119 A.D.3d 1250, 1251, 990 N.Y.S.2d 693 [2014] ; Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602 [2010], lv. denied 16 N.Y.3d 702, 2011 WL 135242 [2011] ; Tuttle v. McQuesten Co., 243 A.D.2d 930, 931, 664 N.Y.S.2d 641 [1997] ). Here, defendant's second summary judgment motion against plaintiff was made after the completion of discovery and within the time limits of CPLR 3212(a), and it turned upon a legal issue not previously decided. In light of these circumstances, we find that Supreme Court acted within its broad discretion in considering the motion (see Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v. Fleming,

32 A.D.3d 566, 567, 820 N.Y.S.2d 348 [2006] ; Matter of Mega Personal Lines, Inc. v. Halton, 9 A.D.3d 553, 554–555, 780 N.Y.S.2d 409 [2004] ; W. Joseph McPhillips, Inc. v. Ellis, 8 A.D.3d 782, 783, 778 N.Y.S.2d 541 [2004] ).

Nor did Supreme Court err in entertaining the defense of judicial estoppel. The waiver that resulted from defendant's failure to raise the defense in his answer or a pre-answer motion to dismiss (see CPLR 3018[b] ) was retracted by the assertion of the unpleaded defense in his motion for partial summary judgment (see Lewiarz v. Travco Ins. Co., 82 A.D.3d 1464, 1465–1466, 919 N.Y.S.2d 227 [2011] ; Matter of Valentino v. County of Tompkins, 45 A.D.3d 1235, 1237, 846 N.Y.S.2d 745 [2007] ; Lerwick v. Kelsey, 24 A.D.3d 918, 919, 806 N.Y.S.2d 732 [2005], lv. denied 6 N.Y.3d 710, 814 N.Y.S.2d 599, 847 N.E.2d 1172 [2006] ; Allen v. Matthews, 266 A.D.2d 782, 784, 699 N.Y.S.2d 166 [1999] ). Inasmuch as plaintiff fully opposed the issue in its responsive papers, and absent any surprise or cognizable prejudice resulting from the delay (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014] ), defendant's failure to plead the defense barred neither its consideration nor a grant of affirmative relief (see Rogoff v. San Juan Racing Assn., 54 N.Y.2d 883, 885, 444 N.Y.S.2d 911, 429 N.E.2d 418 [1981] ; Lerwick v. Kelsey, 24 A.D.3d at 919, 806 N.Y.S.2d 732 ; Sheils v. County of Fulton, 14 A.D.3d 919, 921, 787 N.Y.S.2d 727 [2005], lv. denied 4 N.Y.3d 711, 798 N.Y.S.2d 724, 831 N.E.2d 969 [2005] ).

Turning to the merits, we agree with Supreme Court that plaintiff is judicially estopped from contesting defendant's ownership in the seven lots he purportedly acquired by way of the 2002 deed. Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, “if a party assumes a position in one legal proceeding and prevails in maintaining that position, that party will not be permitted to assume a contrary position in another proceeding simply because the party's interests have changed” (Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d 682, 683, 926 N.Y.S.2d 224 [2011] ; see Barker v. Amorini, 121 A.D.3d 823, 824, 995 N.Y.S.2d 89 [2014] ; Mikkelson v. Kessler, 50 A.D.3d 1443, 1444, 857 N.Y.S.2d 311 [2008] ; Maas v. Cornell Univ., 253 A.D.2d 1, 5, 683 N.Y.S.2d 634 [1999], affd. 94 N.Y.2d 87, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ). “The doctrine rests upon the principle that a litigant should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” (Mikkelson v. Kessler, 50 A.D.3d at 1444, 857 N.Y.S.2d 311 [internal quotation marks and citations omitted]; see Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d at 683, 926 N.Y.S.2d 224 ; Environmental Concern v. Larchwood Constr. Corp., 101 A.D.2d 591, 593, 476 N.Y.S.2d 175 [1984] ).

In the course of the prior litigation between the parties, plaintiff repeatedly represented to Supreme Court that defendant was the owner of the seven lots at issue. Both in its amended complaint in the 2002 action and during the ensuing bench trial held thereon, plaintiff alleged that, by virtue of his ownership of seven lots in the subdivision, defendant had become a successor sponsor under the terms of the Green Harbour offering plan, subject to the duties and responsibilities associated with that status. Based on this factual assertion...