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In re Doman

Supreme Court of New York, Second Department

May 17, 2017

In the Matter of Judith N. Doman, deceased. Alexander Doman, appellant; Cynthia Schneider, respondent. (File No. 1029/06)

          Alexander Doman, Atlanta, GA, appellant pro se.

          Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky and Robert M. Harper of counsel), for respondent.

          RUTH C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In a probate proceeding in which the initial executor of the decedent's estate petitioned to judicially settle the first and final account of an irrevocable inter vivos trust, the objectant Alexander Doman appeals (1) from an order of the Surrogate's Court, Suffolk County (Braslow, S.), dated December 19, 2014, which denied his motion, in effect, for leave to renew with respect to a decree of the same court (Czygier, Jr., S.) dated October 3, 2011, and (2), as limited by his brief, from so much of an order of the same court (Braslow, S.), dated September 3, 2015, as denied his motion pursuant to CPLR 5019(a) to correct the same decree by adding a provision thereto directing the payment of interest pursuant to CPLR 5002.

         ORDERED that the order dated December 19, 2014, is affirmed, without costs or disbursements; and it is further, ORDERED that the order dated September 3, 2015, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant's motion pursuant to CPLR 5019(a) to correct the decree by adding a provision thereto directing the payment of interest pursuant to CPLR 5002 is granted, and the matter is remitted to the Surrogate's Court, Suffolk County, for the calculation of interest and the entry of an amended decree in accordance herewith.

         In this proceeding to judicially settle the first and final account of an irrevocable inter vivos trust, on a prior appeal and cross-appeals from a decree, this Court modified the decree by increasing a sum assessed against the estate of Judith N. Doman (see Matter of Doman, 110 A.D.3d 1073). Thereafter, the objectant Alexander Doman (hereinafter the objectant) moved, in effect, for leave to renew with respect to the decree and, upon renewal, to modify the decree by adding an award of predecision interest pursuant to CPLR 5001 on sums assessed against the estate of Judith N. Doman. The Surrogate's Court denied his motion. The objectant then moved pursuant to CPLR 5019(a) to correct the same decree by adding a provision thereto directing the payment of interest from the date of the decision to the entry of the decree pursuant to CPLR 5002 on all sums assessed thereunder. The court also denied that motion. The objectant appeals.

         An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Surrogate's Court, as well as on the appellate court (see Congel v Malfitano, 141 A.D.3d 64, 70; Quinn v Hillside Dev. Corp., 21 A.D.3d 406, 407; Matter of Oak St. Mgt., Inc., 20 A.D.3d 571, 571). The "doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision'" (Strujan v Glencord Bldg. Corp., 137 A.D.3d 1252, 1253, quoting Erickson v Cross Ready Mix, Inc., 98 A.D.3d 717, 717). Here, contrary to the petitioner's contention, this Court did not resolve on the merits the objectant's request for interest pursuant to CPLR 5001(a) upon the sums assessed against the estate of Judith N. Doman or the objectant's request for interest pursuant to CPLR 5002 (see Matter of Doman, 110 A.D.3d at 1075).

         A court of original jurisdiction may entertain a motion for leave to renew or to vacate a prior order or judgment on the ground of newly discovered evidence even after an appellate court has affirmed the original order or judgment. Nonetheless, in order to imbue the appellate decision with a degree of certainty, on a post-appeal motion for leave to renew or to vacate, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the court of original jurisdiction (see Estate of Essig v 5670 58 St. Holding Corp., 66 A.D.3d 822, 822-823; see also Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 A.D.3d 653, 654-655; Andrews v New York City Hous. Auth., 90 A.D.3d 962, 963; Levitt v County of Suffolk, 166 A.D.2d 421, 422-423). Here, the objectant failed to present "new facts not offered on the prior motion that would change the prior determination" warranting renewal (CPLR 2221[e][2]). In any event, the Surrogate's Court providently exercised its discretion in declining to award predecision interest pursuant to CPLR 5001(a).

         Nevertheless, the Surrogate's Court improvidently exercised its discretion in denying the objectant's motion to correct the omission of an award of interest pursuant to CPLR 5002 from the date of the decision upon which the decree was entered (see CPLR 5019[a]; Rodriguez v Long Is. Coll. Hosp.,289 A.D.2d 556, 556-557). " Interest under CPLR 5002 is a matter of right and is not dependent upon the court's discretion or a specific demand'" (Dermigny v Harper, 127 A.D.3d 685, 686, quoting Matter of Kavares [Motor Veh. Acc. Indem. Corp.],29 A.D.2d 68, 70; see Coronet Capital Co. v Spodek,74 A.D.3d 1271, 1273). Consequently, this matter must be remitted ...


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