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Estate of Rappaport v. Riordan

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 27, 2009

IN THE MATTER OF THE ESTATE OF ALFRED D. RAPPAPORT, ETC., ET AL., APPELLANTS,
v.
JOHN B. RIORDAN, ETC., RESPONDENTS.

In a proceeding pursuant to CPLR article 78, inter alia, to "vacate" a decree of the Surrogate's Court, Nassau County (Riordan, S.), dated November 15, 2005, which, after a trial, among other things, was in favor of Marguerite Downs Rappaport and against the estate of Alfred D. Rappaport in the principal sum of $65,000, based on a promissory note executed by the decedent in that amount, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Lally, J.), entered May 27, 2008, which, in effect, denied the petition and dismissed the proceeding.

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.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, DANIEL D. ANGIOLILLO JOHN M. LEVENTHAL, JJ.

(Index No. 18803/07)

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

A CPLR article 78 proceeding may not be used to seek review of issues that could have been raised on direct appeal (see CPLR 7801[1]; cf. Matter of Wong v Chetta, 271 AD2d 451; Matter of Tyler v Forma, 231 AD2d 891; Matter of Sans v Doyle, 175 AD2d 670, 671). Here, the petitioners failed to appeal from the underlying decree and may not obtain collateral review of the issues which could have been raised on direct appeal from the decree (cf. Matter of Sans v Doyle, 175 AD2d 670). Therefore, the proceeding was properly dismissed (cf. Matter of Wong v Chetta, 271 AD2d 451).

The petitioners' remaining contentions are without merit.

MASTRO, J.P., FISHER, ANGIOLILLO and LEVENTHAL, JJ., concur.

20091027

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