HERMAN v. 36 GRAMERCY PARK REALTY ASSOCIATES LLC (2018)

Judgments, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 1, 2018, which, insofar appealed from as limited by the briefs, granted judgment against plaintiffs in index no. 652700/12 and defendant in index no.  654067/12 (Rosemarie) in favor of defendants in index no. 652700/12 and plaintiffs in index no. 654067/12 (the Mann Parties) on Rosemarie's quiet title claim, unanimously affirmed, without costs.

Even if Rosemarie's quiet title claim is not barred by election of remedies or collateral estoppel, it is barred by judicial estoppel.  That doctrine “prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed” (Becerril v. City of N.Y. Dept. of Health & Mental Hygiene, 110 A.D.3d 517, 519, 973 N.Y.S.2d 586 [1st Dept. 2013], lv denied 23 N.Y.3d 905, 2014 WL 2609500 [2014] ).

In a prior action against her brother, J. Maurice Herman (Maurice), Rosemarie took the position that he had sold her interests in five property-owning limited liability companies—including the LLC that owned the property located at 36 Gramercy Park East—to the Mann Parties in 2002;  therefore, she demanded half of his profits from that transaction.  The court in that action found that Maurice had sold the LLCs and required him to disgorge half of his profits (see Herman v. Herman, 2017 N.Y. Slip Op. 31034[U], 2017 WL 1650117, *6 & 11 [Sup. Ct., N.Y. County], affd 162 A.D.3d 459, 79 N.Y.S.3d 116 [1st Dept. 2018] ).  Thus, Rosemarie secured a ruling in her favor, based on her position that Maurice had sold her interests in the LLCs.

Now, in index no. 652700/12, Rosemarie seeks to quiet title to 36 Gramercy.  To quiet title, she must “claim[ ] an estate or interest in real property” (RPAPL 1501[1] ).  However, if Rosemarie's interests in the property-owning LLCs were sold in 2002, she can no longer claim an interest in 36 Gramercy.