Storman v. Storman
| Decision Date | 20 December 2011 |
| Citation | 90 A.D.3d 895,935 N.Y.S.2d 63,2011 N.Y. Slip Op. 09307 |
| Parties | Keith L. STORMAN, appellant, v. Glenn S. STORMAN, respondent. |
| Court | New York Supreme Court — Appellate Division |
2011 N.Y. Slip Op. 09307
90 A.D.3d 895
935 N.Y.S.2d 63
Keith L. STORMAN, appellant,
v.
Glenn S. STORMAN, respondent.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 20, 2011.
[935 N.Y.S.2d 64]
Macron & Cowhey, P.C., New York, N.Y. (John J. Macron of counsel), for appellant.
Roy A. Satine, New York, N.Y., for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.[90 A.D.3d 896] In an action, inter alia, to recover damages, in effect, for fraudulent inducement, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated September 28, 2010, as denied his motion for leave to enter a default judgment against the defendant upon his failure to answer, and granted those branches of the defendant's renewed motion which were pursuant to CPLR 3211(a)(5) to dismiss the first cause of action on the ground of collateral estoppel and as barred by a release.
[935 N.Y.S.2d 65]
ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendant's renewed motion which were pursuant to CPLR 3211(a)(5) to dismiss the first cause of action on the ground of collateral estoppel and as barred by a release, and substituting therefor a provision denying those branches of the defendant's renewed motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In February 2008, the plaintiff commenced this action, inter alia, to recover damages, in effect, for fraudulent inducement against the defendant, his brother. The first cause of action alleges, among other things, that the defendant fraudulently induced the plaintiff to sign a waiver and consent to admit the will of the parties' deceased mother to probate, and that the defendant fraudulently induced the plaintiff to sign a deed conveying to the defendant certain real property formerly owned by the parties' deceased mother.
Previously, on February 20, 2007, the plaintiff filed a pro se petition for a compulsory accounting in the Surrogate's Court against the defendant, as executor of the parties' mother's estate (hereinafter the accounting proceeding).
On April 24, 2008, the defendant moved, inter alia, pursuant to CPLR 3211(a)(2) and (5) to dismiss the complaint on the grounds of lack of subject matter jurisdiction and collateral estoppel, and as barred by a release. In an order dated December 22,...
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