53 A.D.2d 543 | N.Y. App. Div. | 1976
Judgment, Supreme Court, Bronx County, entered June 27, 1975, dismissing the complaint after a nonjury trial, reversed, on the law and the facts and in the exercise of discretion, and vacated and the matter remanded for a new trial, without costs or disbursements. The underlying facts are set forth in great detail by the dissent. We would merely note that we are remanding for a new trial so that the parties can fully present their positions in this family dispute. This course is preferable to acting in reliance on the sparse state of the present record. Concur—Birns, Capozzoli and Lane, JJ.; Lupiano, J. P., and Nunez, J., dissent in separate memoranda, as follows: Lupiano, J. P. (dissenting). The complaint herein contains three causes of action. The first cause of action is by plaintiff Elizabeth Liggio against the estate of Anthony Liggio, deceased, and seeks $23,700 for alimony, child support and additional moneys allegedly owed by virtue of the transfer of certain real property, to wit, premises known as No. 2123 Story Avenue, Bronx, New York. The second cause of action is by plaintiff Elizabeth Liggio against the afore-mentioned estate; Gaetana Liggio and Vito Liggio and seeks to set aside the conveyance of the premises to Gaetana Liggio as in fraud of the plaintiff. Counsel fees of $15,000 are also sought. In the third cause of action, plaintiff Elizabeth Liggio on behalf of her infant daughters, Eve, Susan and Elizabeth and Donna Liggio, her daughter who had reached the age of majority, seek to set aside the aforesaid conveyance as one made without consideration and in fraud whereby decedent was rendered insolvent. It was further alleged that this conveyance was made with knowledge of the plaintiffs’ rights in an effort to conceal the decedent’s assets at a time when he believed he would incur debts beyond his ability to pay. The defendants in their answer in effect generally deny the allegations of the complaint and assert as a sole affirmative defense the six-year Statute of Limitations bar regarding the first cause of action stated in the complaint. It is axiomatic that under denials, the defendants may offer any evidence tending to disprove anything the plaintiffs would have the burden of proving. CPLR 3018 (subd b) specifically notes "payment” as an affirmative defense. The caption of this lawsuit was subsequently changed to reflect the attaining of majority of Susan Liggio (now known as Susan Friess) and Elizabeth Liggio (now known as Elizabeth Padula), and the substitution of their mother, Elizabeth Liggio, for "John Doe” as the administratrix of Anthony Liggio, deceased, pursuant to letters of administration granted February 7, 1973. Scrutiny of the transcript of the brief nonjury trial and the miscellaneous documents and other papers admitted into evidence, discloses the following pertinent facts. Plaintiff Elizabeth Liggio and the decedent Anthony Liggio were married in 1947. The remaining plaintiffs, including the minor, Eve Liggio, are the children of Elizabeth and Anthony,
Child support both under the first as well as the second separation agreement totals $3,120 per year. In addition, under the first agreement as above noted, the wife was to receive a lump sum payment of $1,000 on or about April 19, 1966 and 35% of the proceeds in the event of a sale or conveyance of the real property. It was clearly contemplated therefore that the conveyance would be for consideration. Under the second and superseding agreement, in addition to child support in the amount already indicated, the husband undertook alimony payments totaling $260 yearly.