Upon the foregoing papers, and oral argument having been heard on January 17, 2008, it appears that in 1984 Riccardo Tedesco, Sr. ("Riccardo Sr.") purchased a shopping center located at 122-140 West Post Road in White Plains, New York (the "Shopping Center'). Shortly thereafter, he formed 122 W.P.R. Corp. ("WPR") which bought the property. It is asserted by Lydia that in December 1992 Riccardo Sr. transferred his interest in WPR to her. It is undisputed that since 1993 Lydia has managed the Shopping Center and that the corporate income tax returns filed by WPR have reported that she is the 100% shareholder of that entity.

In 1985, Riccardo, Sr. also formed another corporation, Briar Vista Construction Corp. ("Briar Vista"). On July 27, 1985, Briar Vista purchased property located at 80 Hawkes Avenue, Ossining, New York ("80 Hawkes"), which was improved with a two-family home. Briar Vista transferred ownership of 80 Hawkes to Thornwood Equities, Inc. ("Thornwood"), another corporation owned by Riccardo, Sr., on October 10, 1985. On June 9, 1987, Thornwood transferred 80 Hawkes to RTJ Landscaping Company, Inc. ("RTJ") an entity owned by Riccardo Jr. In Action 1, Riccardo Sr. alleges that the transfer to RTJ was made upon Riccardo Jr.'s agreement that he would transfer 80 Hawkes back to Riccardo Sr. at any time he requested. Riccardo Jr. has denied this.

On October 16, 1990, Riccardo Sr. purchased a property located at 542 Commerce Street, Thornwood, New York ("542 Commerce") which was improved with a two-family home. However, he placed title of 542 Commerce in Riccardo Jr.'s name. In Action 1, Riccardo Sr. also [*2]asserts that he did so upon the agreement that when requested by him, Riccardo Jr. would re-convey 542 Commerce to him. Riccardo Jr. has denied this.^[FN1]

In May 2005, Lydia and Riccardo Jr. commenced a proceeding pursuant to Mental Hygiene Law Part 81 seeking to have themselves appointed as co-guardians of Riccardo Sr.'s property. Their petition alleged, inter alia, that Riccardo Sr. was suffering from "dementia and/or other neurological disorders" and that he was the victim of certain scams involving the transfer of substantial assets to Nigeria. Shortly after commencing the guardianship proceeding, which was opposed by their father, Lydia and Riccardo Jr. withdrew their petition.

Riccardo Sr.'s response was to demand the reconveyance of 80 Hawkes and 542 Commerce. Faced with Riccardo Jr.'s refusal to transfer those properties back to him, Riccardo

Sr. commenced Action 1 against Riccardo Jr. and RTJ seeking a declaration that he is the sole owner of such properties. While Action 1 was pending, Riccardo Sr. obtained a $175,000 mortgage against 542 Commerce from Ashlar Mechanical Corp. ("Ashlar") notwithstanding that neither Riccardo Sr. nor any of his entities was the title owner of the property.^[FN2] In addition, in February 2005, Riccardo, Sr. attempted to put a mortgage on 80 Hawkes.

Lydia then commenced Action 2 in which she asserted her ownership of WPR and the Shopping Center and sought to enjoin Riccardo Sr. from interfering with WPR or its property. Riccardo Sr. claims to be the sole shareholder of WPR. On March 1, 2006 Lydia filed an order to show cause ("OTSC") seeking a preliminary injunction against Riccardo, Sr. that would bar him from taking any action with respect to WPR and the Shopping Center. The OTSC signed on March 1, 2006 included a temporary restraining order ("TRO") which prohibited Riccardo Sr. "from entering into or recording any mortgage or other encumbrance upon any properties of record in the name of, or owned or managed by, or claimed to be owned by [Lydia] or [WPR]." Be that as it may, on June 2, 2006 it was revealed that Riccardo Sr. had obtained two mortgages on the Shopping Center. The first, in the amount of $550,000 was obtained before the effective date of the TRO. The second, in the amount of $320,000, was obtained in violation of the TRO. On December 7, 2006, Riccardo Sr. was adjudicated in civil contempt and ordered jailed unless he paid $320,000 to Lydia's attorneys to purge his contempt.

Thereafter, Riccardo Sr. commenced Action 3 where it was alleged that between 1990 and 1996 he transferred various properties^[FN3] to Lydia or Riccardo Jr. as nominees with the express understanding that title to such property would be conveyed to him upon his request. [*3]

In 1996, Riccardo Sr., who already had a state court felony conviction for a crime involving fraudulent conduct, entered a guilty plea in Federal District Court in New Jersey to the crimes of conspiracy to commit bank fraud and bribery of a bank officer, in satisfaction of certain charges relating to fraudulent mortgages obtained by him. At sentencing, he was ordered to make restitution. In seeking a reduction of the amounts that he was required to pay, Riccardo Sr. filed a financial affidavit with the Federal District Court in which he denied owning any real property or having any other assets. Based upon that application, in June 1997, the Federal district Court reduced the amount Riccardo Sr. was required to pay Suburban National Bank from $50,000 to $25,000. Lydia and Riccardo Jr. Have moved for summary judgment in the three Actions based on such financial affidavit.

It is well settled in the jurisprudence of this State that 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 (Ford Motor Credit Company v Colonial Funding Corp., 215 AD2d 435, 436 [2d Dept 1995]). In this case, in support of his application for a reduction of the financial penalty imposed on him following his guilty plea, Riccardo Sr. represented to the Federal District Court that he owned no real estate or other assets and that no one was holding any assets in his behalf. Those representations helped to secure him the sentence reduction he sought. Having disclaimed ownership of any realty in a financial statement which he certified to be true on March 7, 1996, a date after the transactions giving rise to his claims in this litigation, he cannot be heard to assert any interest in the properties which are the subject of these three Actions (Festinger v Edrich, 32 AD3d 412 [2d Dept 2006]).

For the foregoing reasons, the motion is granted, the complaints in Actions 1 and 3 are dismissed and Lydia is granted summary judgment in Action 2. This constitutes the decision and order of this Court.

Settle order.

Dated:White Plains, New York

January, 2008

_____________________________________

HON. GERALD E. LOEHR

Acting J.S.C.