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.
C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
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.
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.
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.
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).
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]). In any event, the
Surrogate's Court providently exercised its discretion in
declining to award predecision interest pursuant to CPLR
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 ...