Opinion
February 22, 1994
Appeal from the Supreme Court, Suffolk County (Jack Cannavo, J.).
While inconsistent pleadings are permissible, in view of plaintiff's shifting theories the denial of relief was not an abuse of discretion. Though plaintiff had the opportunity to raise her claim of ownership in her defense to the summary proceeding in District Court and in her initial stay application in Supreme Court, she did not advance any such claim until her service of an amended complaint containing a declaratory judgment cause of action. Plaintiff also failed to demonstrate a likelihood of success on the merits with respect to both her claim of title, the prenuptial agreement with her deceased husband granting her only the limited right to occupy the residence for a period of six months after his death, and her challenge to the validity of the testamentary trust settled by her husband's first wife, which granted him an equitable life estate with the remainder to the first wife's son, defendant James Rand. We note that Special Term's determination as to the injunctive relief does not have preclusive effect with respect to the ultimate resolution of the title dispute or any question involving the imposition of a constructive trust.
Concur — Sullivan, J.P., Ellerin, Asch and Tom, JJ.