FOTI v. FOTI (Appellate Division, 4th Dep’t)

While the lower court properly acknowledged that the defendant-wife’s father had gifted various real estate entities and management companies as separate property, the appellate court held that the lower court erred in granting a partial summary judgement to the wife stating that such property constituted separate property.  The appellate court held that an issue of fact still exists whether the wife comingled her interests in the entities with any marital property because the wife reported her interest in the entities on the parties’ joint federal tax return as tax losses and a “party to litigation may not take a position contrary to a position taken on an income tax return.”