Order, Surrogate's Court, New York County (Renee Roth, S.), entered July 31, 2008, which, to the extent appealed from, denied Sun Life's motion for summary judgment, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Andrias, Saxe, Renwick, Manzanet-Daniels, JJ.
The estate's position on its attempt to void the annuity contract, which culminated in a settlement, did not judicially estop it from asserting its claim for the difference in the amount paid and the pre-decline value of decedent's investment since, among other reasons, it did not prevail in the earlier portion of the action (see HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 37 AD3d 43, 48 ). Nor was the claim barred by laches, since the estate was not guilty of undue delay and Sun Life's ability to present a defense was not hampered as a result (see Continental Cas. Co. v Employers Ins. Co. of Wausau, 60 AD3d 128, 137-138 ; Santos v 500 C.S. Realty Corp., 48 AD3d 217 ). Although the Surrogate did not address the accrual of interest, any determination of that issue would have been premature.
We have considered appellant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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