Summary Judgment plus attorneys’ fees granted on appeal after trial judge improperly found a question of fact regarding defense of equitable estoppel
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Mazzarelli, J.P., Acosta, Renwick, Richter, Gische, JJ.
Index 105570/08

Cadlerock, L.L.C.,
Plaintiff-Appellant-Respondent,
-against-
Jan Z. Renner,
Defendant-Respondent-Appellant.
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Vlock & Associates, P.C., New York (Steven P. Giordano of counsel), for appellant-respondent.
Goldstein & Greenlaw, LLP, Forest Hills (Andrew Schwarsin of counsel), for respondent-appellant.
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Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered August 15, 2012, which denied defendant’s motion for summary judgment, and plaintiff’s cross motion to strike defendant’s affirmative defense of equitable estoppel and for summary judgment, unanimously modified, on the law, the cross motion granted, the matter remanded for a determination of attorneys’ fees and expenses, and otherwise affirmed, without costs.

In this action to recover on a promissory note, we had found an issue of fact as to whether the action is barred as a result of equitable estoppel arising from plaintiff’s failure until commencement of the action in April 2008 to seek recovery of arrears since the January 2003 sale of the cooperative unit that the note financed (72 AD3d 454 [2010]). Even if, arguendo, silence is sufficient to support an estoppel, we find that, on this second motion for summary judgment after discovery, defendant failed to demonstrate that he suffered prejudice as a result of plaintiff’s inaction. We disagree with the motion court’s perception that defendant misunderstood the question about prejudice posed to him at his deposition, as well as with its conclusion that his failure to articulate any change in position resulting from plaintiff’s inaction nevertheless constituted prejudice (see BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 [1st Dept 1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 9, 2013