General
In the Matter of Jerome Fisch, Respondent, v. Dorothy Aiken, Appellant
252 A.D.2d 556675 N.Y.S.2d 885·New York Supreme Court, Appellate Division·1998·NY
Brief incoming
Hand-reviewed Bluebook brief (procedural posture, facts, issue, holding, reasoning, dissent) ships once the AI generation pipeline runs through this case. Join the waitlist to get notified when 1L briefs go live.
Opinion
In the Matter of Jerome Fisch, Respondent, v Dorothy Aiken, Appellant.
[675 NYS2d 885]
[MAJORITY]
—In a special proceeding pursuant to CPLR 5206 (e) to direct the sale of a homestead, the appeal is from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered June 23, 1997, which granted the petition:
Ordered that the order is affirmed, with costs.
It is well settled that in a special proceeding, where no triable issues of fact are raised, the court may make a summary determination on the pleadings and papers submitted as if a motion for summary judgment were before it (see, CPLR 409 [b]; Matter of Friends World Coll, v Nicklin, 249 AD2d 393; Matter of Bahar v Schwartzreich, 204 AD2d 441).
Here, the appellant’s affidavit merely presents a feigned factual issue designed to avoid the consequences of the petitioner’s documentary evidence (see, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Capraro v Staten Is. Univ. Hosp., 245 AD2d 256; Garvin v Rosenberg, 204 AD2d 388). The Supreme Court, therefore, correctly decided the petition without a hearing.
The appellant’s remaining contentions are either without merit or are unpreserved for appellate review. O’Brien, J. P., Santucci, Krausman and Goldstein, JJ., concur.