Edith Rea v Joseph C. Rea

Rea v Rea 2004 NY Slip Op 09490 [13 AD3d 511] December 20, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Edith Rea, Respondent,
v
Joseph C. Rea, Appellant.

—[*1]

In an action, inter alia, for an accounting, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated December 15, 2003, as, upon reargument, granted that branch of the plaintiff's motion for summary judgment which was for return of principal held by the defendant in the amount of $2,586.28, plus interest of 9% per annum from the date of service of process upon the defendant.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant was estopped from claiming that certain distributions to the plaintiff were return of principal where the defendant concedely represented to the plaintiff that the distributions were interest income and the plaintiff relied upon such representations (see Bogoni v Friedlander, 197 AD2d 281, 293 [1994]; cf. Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 368-369 [1988]).

The defendant's remaining contentions are without merit. Smith, J.P., Luciano, Crane and Rivera, JJ., concur.