BAJE REALTY CORP. v. ALICE CUTLER

Citation Codes

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Docket Number

8505.

Attorney(S)

Gordon, Gordon Schnapp, P.C., New York (Elliot Schnapp of counsel), for appellants. Kaplan, Thomashower Landau LLP, New York (Eugene Neal Kaplan of counsel), for respondents.

Judges

Peter Tom
David Friedman
John W. Sweeny

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Smart Summary

Factual and Procedural Background

This litigation, commenced in 1990, concerns the ownership of the premises at 180 West 81st Street in Manhattan, consisting of four commercial units and 12 residential units subject to rent control or rent stabilization. The property’s ownership history involves an unknown seller transferring the premises to 180 West 81st Street, Inc., then to plaintiff Baje Realty Corp., wholly owned by Robert Bianco. Defendants and third-party plaintiffs, represented by Alice Cutler as executrix of Arthur Cutler (deceased), were involved in managing the premises and were promised an ownership interest. Third-party defendants Walter and Marion Sakow claim ownership in Baje Realty by assignment. A settlement agreement led Bianco to sell the premises to the Cutler interests by quitclaim deed dated February 11, 2004.

The Cutler interests moved for partial summary judgment to preclude the Sakows from asserting ownership in Baje Realty, relying on statements made by Walter Sakow in these and other proceedings. The Supreme Court granted the motion based on judicial estoppel. The Appellate Division reversed the order, denying the motion.

Legal Issues Presented

Whether the doctrine of judicial estoppel precludes Walter Sakow and the Sakow interests from asserting ownership in Baje Realty based on his prior inconsistent statements.
Whether the Cutler interests are entitled to partial summary judgment to bar the Sakows’ ownership claims.
Whether equitable estoppel applies to bar the Sakows’ claims based on reliance by the Cutler interests on Sakow’s prior statements.

Arguments of the Parties

Cutler Interests' Arguments

Walter Sakow made prior statements denying ownership interest in Baje Realty, which should estop the Sakows from claiming ownership now under judicial estoppel.
The prior affidavit statements by Sakow are binding judicial admissions that preclude contradictory claims.
Equitable estoppel should apply because the Cutler interests allegedly relied on Sakow’s prior denial of ownership.

Sakows' Arguments

Walter Sakow’s prior inconsistent statements do not constitute formal judicial admissions binding throughout the litigation.
Because no formal judgment was secured based on the prior statements, judicial estoppel does not apply.
The prior statements are informal admissions subject to explanation and impeachment but not conclusive.
There is no evidence that the Cutler interests changed their position in reliance on Sakow’s prior statements, defeating equitable estoppel.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Prince, Richardson on Evidence § 8-215 (Farrell 11th ed.)	Judicial admissions are binding unless modified or relieved by the court.	The court found Sakow’s prior statements did not meet the criteria for formal judicial admissions binding throughout the litigation.
Jones Lang Wootton USA v LeBoeuf, Lamb, Greene MacRae, 243 AD2d 168	Judicial estoppel prevents a party who secured a favorable judgment based on a position from later assuming a contrary position.	The court held that since no formal relief was secured based on Sakow’s prior statements, judicial estoppel did not apply.
Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435	Definition of the doctrine of judicial estoppel or inconsistent positions.	Used to explain the limits of judicial estoppel in this case.
Lowinger v Lowinger, 303 AD2d 723	Judicial estoppel applies only if a party secured formal relief based on a prior position.	Supported the court’s conclusion that judicial estoppel was inapplicable here.
All Terrain Props. v Hoy, 265 AD2d 87	Contrasting cases where judicial estoppel was applied.	Referenced for comparative purposes.
Maas v Cornell Univ., 253 AD2d 1, affd 94 NY2d 87	Judicial estoppel principles and their application.	Supported the court’s reasoning on estoppel.
Prince, Richardson on Evidence § 8-219	Informal judicial admissions are evidence but not conclusive.	Explained that Sakow’s prior statements could be used for impeachment and weighed by the trier of fact.
Bogoni v Friedlander, 197 AD2d 281	Informal admissions may be explained at trial.	Supported the view that Sakow’s prior affidavit was not dispositive.
Somir v Weiss, 271 AD2d 433	Prior inconsistent statements may be used to impeach credibility.	Allowed the court to consider Sakow’s prior affidavit as impeachment evidence.
Pitt v Brough, 132 AD2d 836	Weight of affidavits and evidence is for the jury.	Indicated that the jury should weigh Sakow’s statements.
Mount Vernon Contr. Corp. v State of New York, 56 AD2d 952	Affidavits may be accorded weight as determined by the trier of fact.	Reinforced that Sakow’s affidavit was not conclusive.
BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850	Elements necessary for equitable estoppel, including detrimental reliance.	The court found no indication of reliance by the Cutler interests on Sakow’s prior statements.

Court's Reasoning and Analysis

The court analyzed Walter Sakow’s prior inconsistent statements regarding ownership interests in Baje Realty. Initially, Sakow claimed an ownership interest through a verbal agreement with Bianco and involvement in forming corporations owning the premises. Earlier, however, Sakow denied any ownership, stating his role was limited to advising and supervising construction with an expectation of a minority interest only if the building was vacated and rehabilitated, which never occurred.

The court concluded that Sakow’s earlier affidavit was not a formal judicial admission binding for the entire litigation because no judgment or relief was secured based on that statement. Therefore, the doctrine of judicial estoppel did not apply. Instead, the prior statement was considered an informal judicial admission, which could be used to impeach credibility and be weighed by the jury but was not conclusive.

Furthermore, the court rejected the application of equitable estoppel, noting there was no evidence that the Cutler interests changed their position in reliance on Sakow’s prior denial of ownership.

Holding and Implications

The Appellate Division unanimously reversed the Supreme Court’s order granting partial summary judgment to the defendants and third-party plaintiffs, and denied the motion for partial summary judgment.

The direct effect of this decision is to allow the Sakows to continue asserting their ownership claims in Baje Realty. The court’s ruling clarifies that prior inconsistent statements do not automatically trigger judicial estoppel absent a formal judgment based on those statements, and informal admissions remain subject to explanation and credibility assessment. No new precedent was established beyond the application of existing principles to the facts of this case.

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BAJE REALTY CORP., Appellant, v. ALICE CUTLER, as Executrix of ARTHUR CUTLER, Deceased, et al., Respondents and Third-Party Plaintiffs. WALTER SAKOW et al., Third-Party Defendants-Appellants, et al, Third-Party Defendants.

At issue in this litigation, commenced in 1990, is the ownership of premises known as 180 West 81st Street in Manhattan, which consists of four commercial units on the ground floor and 12 residential units, which are variously subject to rent control or rent stabilization. Although little can be stated with certainty, the subject premises seem to have passed from an unknown seller to 180 West 81st Street, Inc. and thence to plaintiff Baje Realty Corp., of which corporations third-party defendant Robert Bianco was the sole owner, director and share owner. It is also apparent that defendants and third-party plaintiffs Jeffrey Baynon and Arthur Cutler, deceased — represented by defendant and third-party plaintiff Alice Cutler, as executrix (collectively, the Cutler interests) — were involved in the management of the premises, for which they were promised an unspecified ownership interest. Third-party defendants Walter and Marion Sakow claim ownership interest in Baje Realty by assignment. In an agreement settling the dispute between them, Bianco sold the premises to the Cutler interests by quitclaim deed dated February 11, 2004.

The Cutler interests moved, inter alia, for partial summary judgment to preclude the Sakows from asserting ownership to Baje Realty. The motion was predicated upon statements made by Walter Sakow in these and other proceedings. Supreme Court invoked the doctrine of judicial estoppel to grant the motion. We reverse.

In the course of these proceedings, Walter Sakow has given at least two inconsistent accounts of the material facts. In an affidavit sworn to on March 11, 2004, submitted in opposition to a motion to direct Baje Realty to turn over certain records, he averred that in approximately 1982, he was contacted by one Max Henick concerning the purchase of the subject premises. With the participation of a friend and business associate, Robert Bianco, Sakow caused 180 West 81st Street Corporation to be formed, which took assignment of Henick's right to purchase the building. Allegedly to avoid discord with the tenants should they to learn that Sakow was an owner, he and Bianco agreed that Bianco would be the sole share owner, officer and director of the corporation. This agreement was purportedly subject to an oral agreement that Bianco, upon demand, would transfer all of the shares in the corporation to Sakow. Sakow then induced Arthur Cutler and his associate, Jeffrey Baynon, to negotiate with the tenants for their relocation so the building could be vacated and rehabilitated. Thereupon, a new corporate owner, plaintiff Baje Realty, was formed, again with Bianco as sole shareholder and officer and again subject to the verbal transfer-on-demand agreement, with the further understanding that if Cutler and Baynon were successful in emptying the building, they would collectively receive 50% of the stock in Baje. Although the tenants were never relocated, Sakow alleges that Cutler and Baynon seized control of the premises, transferred the building to an entity they had formed and advised the tenants to send their rent payments to that entity, prompting this lawsuit.

In a prior affidavit sworn to on October 3, 1990 in support of a motion to enjoin Cutler and Baynon from acting as officers of Baje Realty, Walter Sakow took a different position and stated that his "only involvement with Baje" was as an advisor and supervisor of construction work. He stated that, in 1982, Robert Bianco "told me that he was having problems with a building he owned at 180 West 81st Street in Manhattan (the `Building') which he had purchased on my recommendation" with the intention to vacate and rehabilitate the premises. Allegedly because Bianco's relationship with the tenants had "deteriorated badly," Bianco sought Sakow's advice and assistance, where-upon Sakow recommended Arthur Cutler to "accomplish the desired result here." For several years, Sakow stated, "I supervised construction work to maintain the Building" with the "understanding that I would receive a minority stock interest in Baje . . . in the event it was vacated and successfully rehabilitated. It was also my understanding that Cutler and his associate, Jeffrey Baynon, who was assisting him in vacating the building, had a similar arrangement. Since the rehabilitation of the Building was never completed I did not receive any interest in Baje." Sakow also denied ever being a partner in an entity known as Baje Realty Co. and "never included on my personal tax return any income or losses from the operation of the Building owned by Baje."

While Walter Sakow's earlier recitation of the facts is irreconcilable with his present position, it does not meet the criteria for a formal judicial admission so as to be "binding on the parties throughout the entire litigation, unless modified or relieved in the discretion of the court" (Prince, Richardson on Evidence § 8-215 [Farrell 11th ed]). "The doctrine of judicial estoppel or the doctrine of inconsistent positions `precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed'" ( Jones Lang Wootton USA v LeBoeuf, Lamb, Greene MacRae, 243 AD2d 168, 176, lv dismissed 92 NY2d 962, quoting Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436). Because third-party defendants did not secure any formal grant of relief based upon Sakow's prior statement, it does not implicate the doctrine of inconsistent positions ( Lowinger v Lowinger, 303 AD2d 723, 724; cf. All Terrain Props, v Hoy, 265 AD2d 87, 93); Maas v Cornell Univ., 253 AD2d 1, 5, affd 94 NY2d 87). Rather, the statement constitutes an informal judicial admission that is not conclusive but "is merely evidence of the fact or facts admitted" (Prince, Richardson on Evidence § 8-219, supra), "the circumstances of which may be explained at trial" ( Bogoni v Friedlander, 197 AD2d 281, 293, lv denied 84 NY2d 803). Sakow's prior affidavit may be used to impeach his credibility ( see Somir v Weiss, 271 AD2d 433, lv denied 95 NY2d 758) and otherwise may be "weighed by the jury according to the underlying facts and circumstances" ( Pitt v Brough, 132 AD2d 836, 837; see also Mount Vernon Contr. Corp. v State of New York, 56 AD2d 952, 953, lv dismissed 42 NY2d 889 ["the affidavit in question could be accorded such weight as the trier of the facts might determine"]).

Finally, Supreme Court's disposition is not sustainable on the basis of equitable estoppel. There is no indication that the Cutler interests changed their position in reliance upon the prior statement by Walter Sakow disavowing any interest in Baje Realty Corp. or the subject premises ( see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853).