           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1325
CA 13-00358
PRESENT: SMITH, J.P., FAHEY, VALENTINO, AND WHALEN, JJ.


PAUL FOTI, PLAINTIFF-APPELLANT,

                     V                            MEMORANDUM AND ORDER

GINA FOTI, DEFENDANT-RESPONDENT.


JOAN de R. O’BYRNE, ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, ROCHESTER
(MICHAEL PAUL OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), entered April 4, 2012 in a divorce action. The order
granted the motion of defendant for partial summary judgment
determining that various real estate entities and management companies
were her separate property.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and defendant’s motion
is denied.

     Memorandum: In this divorce action, defendant moved for partial
summary judgment determining that various real estate entities and
management companies (hereafter, entities) were her separate property.
We agree with plaintiff that Supreme Court erred in granting the
motion. Although defendant established that her father gifted the
entities to her as separate property (see generally Allen v Allen, 263
AD2d 691, 692), there is an issue of fact whether defendant thereafter
commingled her interests in the entities with marital property (see
generally Richter v Richter, 77 AD3d 1470, 1471; Haas v Haas, 265 AD2d
887, 888). Here, the parties filed a joint federal tax return in
which defendant reported her interest in the entities as tax losses,
and “[a] party to litigation may not take a position contrary to a
position taken in an income tax return” (Mahoney-Buntzman v Buntzman,
12 NY3d 415, 422).




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
