Kosturek v. Kosturek
| Decision Date | 12 June 2013 |
| Citation | 968 N.Y.S.2d 97,2013 N.Y. Slip Op. 04310,107 A.D.3d 762 |
| Parties | Eugenia KOSTUREK, appellant, v. Jan KOSTUREK, respondent. |
| Court | New York Supreme Court — Appellate Division |
107 A.D.3d 762
968 N.Y.S.2d 97
2013 N.Y. Slip Op. 04310
Eugenia KOSTUREK, appellant,
v.
Jan KOSTUREK, respondent.
Supreme Court, Appellate Division, Second Department, New York.
June 12, 2013.
[968 N.Y.S.2d 98]
Teresa K. Szymanik, Brooklyn, N.Y. (Aaron M. Feldman of counsel), for appellant.
John A. Gemelli, P.C., Forest Hills, N.Y. (Emily C. Walsh of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.
[107 A.D.3d 762]In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Thomas, J.), entered May 11, 2011, as granted the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law on the issues of maintenance and equitable distribution of a certain parcel of real property located in Union, New Jersey, and, as, upon a decision of the same court dated February 10, 2011, made after a nonjury trial, failed to award her maintenance and equitable distribution of the real property.
ORDERED that the order and judgment is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the defendant's motion pursuant to CPLR 4401 which was for judgment as a matter of law on the issue of equitable distribution of the parcel of real property located in Union, New Jersey, and substituting therefor a provision denying that branch of the defendant's motion; as so [107 A.D.3d 763]modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith, and for the entry of an appropriate amended judgment thereafter.
Contrary to the Supreme Court's determination, the plaintiff established, prima facie, her entitlement to equitable
[968 N.Y.S.2d 99]
distribution of a certain parcel of real property located in Union, New Jersey. The defendant admitted in his Statement of Proposed Disposition that he acquired some ownership interest in the property during the marriage ( see22 NYCRR 202.16 [h]; Lee v. Lee, 18 A.D.3d 508, 512, 795 N.Y.S.2d 283), and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source. This unequivocal,...
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...[2d Dept.1995] ). A factual assertion made by an attorney during an opening statement is a judicial admission ( see Kosturek v. Kosturek, 107 A.D.3d 762, 968 N.Y.S.2d 97 [2nd Dept.2013] ). A judicial admission is not itself dispositive but merely evidence of the fact admitted ( see Bogoni v......
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...encroach” on plaintiff ’s air space is some evidence of encroachment, where trespass was an issue in the action. Kosturek v. Kosturek , 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept. 2013). In a matrimonial action, unequivocal factual assertion by attorney in opening statement that defendant acq......
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Hearsay
...encroach” on plaintif ’s air space is some evidence of encroachment, where trespass was an issue in the action. Kosturek v. Kosturek , 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept. 2013). In a matrimonial action, unequivocal factual assertion by attorney in opening statement that defendant acqu......
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Hearsay
...encroach” on plaintif ’s air space is some evidence of encroachment, where trespass was an issue in the action. Kosturek v. Kosturek , 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept. 2013). In a matrimonial action, unequivocal factual assertion by attorney in opening statement that defendant acqu......
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Hearsay
...a formal judicial admission and is binding in a subsequent litigation concerning liability for judgments. Kosturek v. Kosturek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept. 2013). In a matrimonial action, unequivocal factual assertion by attorney in opening statement that defendant acquired ow......