Matter of Lupoli

• Decision Date: 25 September 2000
• Citation: 275 A.D.2d 781,714 N.Y.S.2d 503
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Estate of RAFFAELE LUPOLI, Also Known as RAPHAEL LUPOLI, Deceased.<BR>PETER LUPOLI, Respondent-Appellant;<BR>MATTHEW LUPOLI, Appellant-Respondent.

275 A.D.2d 781

714 N.Y.S.2d 503

In the Matter of the Estate of RAFFAELE LUPOLI, Also Known as RAPHAEL LUPOLI, Deceased. PETER LUPOLI, Respondent-Appellant; MATTHEW LUPOLI, Appellant-Respondent.

Decided September 25, 2000.

Bracken, J.P., Thompson, Goldstein and McGinity, JJ., concur.

Ordered that the decree is modified, on the law and the facts, by (a) deleting the ninth decretal paragraph thereof, (b) deleting from the fifth decretal paragraph the words "$85,000.00 as legal fees" and substituting therefor the words "$82,000.00 as legal fees", and (c) deleting the eleventh decretal paragraph awarding Matthew Lupoli commissions; as so modified, the decree is affirmed insofar as appealed and cross-appealed from, with costs to Peter Lupoli payable by Matthew Lupoli personally, and the matter is remitted to the Surrogate's Court, Queens County, for a recalculation of the damages to be paid to the estate by Matthew Lupoli in accordance herewith.

The contention of the objectant Matthew Lupoli (hereinafter the objectant) that the Surrogate's Court lacked subject matter jurisdiction is without merit. In a related action in the Supreme Court, Queens County, the petitioner appealed to this Court from an order which, inter alia, granted the objectant's cross motion to stay the Supreme Court action pending the resolution of this proceeding. In that appeal, the objectant argued that the Surrogate's Court had concurrent jurisdiction of the issues raised in this proceeding and should decide those issues. In affirming the Supreme Court order (see, Lupoli v Lupoli, 205 AD2d 595), this Court's decision and order clearly indicated that the Surrogate's Court has the jurisdiction to decide the claims asserted by the petitioner in this proceeding. The objectant cannot now maintain the inconsistent position that the Surrogate's Court lacked subject matter jurisdiction of the issues.

Additionally, on a prior appeal in this proceeding, we rejected as lacking in merit the objectant's contention that the Surrogate's Court had exceeded its authority with respect to directions to the petitioner to pursue certain claims against him (see, Matter of Lupoli, 191 AD2d 564). Those claims are the very ones resolved against the objectant in the instant proceeding, and thus the objectant's current claim that the Surrogate's Court exceeded its authority is barred by res judicata (see, Matter of Field Home-Holy Comforter v DeBuono, 238 AD2d 589).

In a prior decree dated October 16, 1990, the Surrogate's Court directed the petitioner to retain an independent appraiser to determine the fair and reasonable rental value for all property occupied by the objectant from 1979. If no leases were produced, the appraisal was to be made under the presumption that the tenancies were month-to-month. Accordingly, in...