Williams v. Feig

Nov 8, 2006
Versions:34 A.D.3d 460
828 N.Y.S.2d 64

In an action, inter alia, to foreclose a mortgage, the defendant Goldy Feig appeals from an order of the Supreme Court, Rockland County (Nelson, J.), dated May 10, 2005, which denied her motion for summary judgment dismissing the second amended complaint as time-barred and as barred by the statute of frauds.

Ordered that the order is affirmed, with costs.

The appellant met her initial burden of establishing her entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1066 [1979];Khaghan v Rye Town Park Commn., 8 AD3d 447 [2004]) as to the statute of limitations and the statute of frauds. In opposition, however, the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether the appellant should be equitably estopped from asserting as defenses both the statute of limitations (see Zumpano v Quinn, 6 NY3d 666, 673 [2006]; Simcuski v Saeli, 44 NY2d 442, 449 [1978]) and the statute of frauds (see generally McKinley v Hessen, 202 NY 24, 29-30 [1911]; Greene v First Fed. Sav. & Loan Assn. of Rochester, 122 AD2d 593, 594 [1986]; St. Paul Indus. Park v New York State Urban Dev. Corp., 63 AD2d 822, 823 [1978]; Fletcher v Manhattan Life Ins. Co., 197 App Div 484, 488 [1921]). Miller, J.P., Goldstein, Mastro and Dillon, JJ., concur.