In the Matter of Press

• Citation: 30 A.D.3d 154,816 N.Y.S.2d 441,2006 NY Slip Op 04313
• Decision Date: 01 June 2006
• Docket Number: 7790.
• Parties: In the Matter of the Estate of BETH PRESS, Also Known as BETH SIEGEL, Deceased. ROBERT J. BURTON, Appellant; TIMOTHY L. THOMPSON, as Executor, Respondent.
• Court: New York Supreme Court Appellate Division

30 A.D.3d 154

816 N.Y.S.2d 441

2006 NY Slip Op 04313

In the Matter of the Estate of BETH PRESS, Also Known as BETH SIEGEL, Deceased ROBERT J. BURTON, Appellant; TIMOTHY L. THOMPSON, as Executor, Respondent.

7790.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 1, 2006.

Order, Surrogate's Court, New York County (Eve M. Preminger, S.), entered on or about November 23, 2004, which denied claimant's motion to disaffirm the report of the Special Referee dismissing his claims for legal fees against the estate, and granted the estate's cross motion to confirm the report, unanimously reversed, on the law, without costs, the motion granted to the extent of remanding the matter for a hearing, the cross motion denied and the Special Referee's report disaffirmed.

In 1998, claimant asserted two objections to the executor's accounting for legal work he had performed years earlier in connection with the decedent's divorce. Specifically, claimant alleged that the decedent, who died in January 1996, owed him $31,337.60 in legal fees which, pursuant to a judgment rendered in June 1985, her husband had been ordered to pay claimant on her behalf. Claimant also asserted a quantum meruit claim in excess of $64,000 for work he allegedly performed from March 11, 1982, the date he and the decedent executed a retainer agreement, until he was discharged in late 1990. The retainer provided that claimant represents the decedent "in all proceedings arising out of her marriage . . ., including proceedings for temporary alimony, permanent alimony, separation, divorce and/or enforcement of the post-nuptial agreement."

In 1991, claimant filed for bankruptcy. He alleges that on December 19, 1996, he served a complaint against the estate in the bankruptcy proceeding asserting the quantum meruit cause of action. Claimant argued before the Referee in this accounting proceeding that his objection based on the quantum meruit cause of action was timely because he served the complaint in the bankruptcy proceeding within six years of his discharge. However, the letter upon which claimant relied to establish his discharge date of December 19, 1990 is not part of the record, and he and the decedent executed an earlier substitution of counsel form dated November 20, 1990. There is no indication in the record whether the estate asserted a statute of limitations defense in the bankruptcy proceeding. Nor does it appear that claimant ever commenced proceedings against the decedent or her estate in the bankruptcy court or elsewhere for the amount set forth in the 1985 judgment, which is the basis of claimant's other objection.

After the estate replied to claimant's objections, asserted numerous defenses,^* and requested that the objections be dismissed, the Surrogate referred the matter to a Referee to hear and report. However, on the day the hearing was to commence, the Referee dismissed the objections without taking any testimony or considering any evidence. The Referee issued a report which, upon the parties' respective motions, the Surrogate confirmed.

We reverse. The Referee committed a myriad of errors in summarily dismissing claimant's objections to the estate accounting. The first such error was reliance on a prior 1997 order to bar the objections on res judicata and collateral estoppel grounds. The estate was not a party to the prior action, and therefore, res judicata does not bar claimant's objections (see Matter of Hodes v Axelrod, 70 NY2d 364, 372 [1987]). Nor does collateral estoppel apply since, based on the record before us, it does not appear that the claims raised in the prior action are the same as those raised here (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]). The estate argues that claimant did not proffer the record of the earlier action in order to demonstrate dissimilar issues or facts. However, "the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue" (Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]; see also Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997]), a burden the estate failed to carry.

With respect to claimant's assertion that the estate is liable for the decedent's husband's obligation under the June 1985 judgment to pay her legal...