In re the Estate of Duell

306 A.D.2d 223, 762 N.Y.S.2d 246, 2003 N.Y. App. Div. LEXIS 7469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2003
• Status: Published

Opinion

—Order, Surrogate’s Court, New York County (Renee Roth, S.), entered October 7, 2002, which, inter alia, granted the motion of objectant Irene Duell to vacate those portions of petitioner’s accounting based on appraisals of estate property differing from the appraisal of Cushman & Wakefield, which appraisal was accepted by the court, unanimously affirmed, with costs.

The Surrogate properly held that petitioner’s appraisal, submitted in support of his final accounting of the estate property, was incorrect to the extent petitioner relied upon valuations of estate properties that differed from the valuations in the prior appraisal by the firm Cushman & Wakefield. The Cushman & Wakefield appraisal was submitted by the neutral coexecutor, was supported by the third coexecutor and was previously accepted by the Surrogate, forming the basis for the distribution order. Petitioner previously attempted to challenge the propriety of the Cushman & Wakefield appraisal, which challenge was rejected by the Surrogate and this Court (see Matter of Duell, 232 AD2d 251 [1996], lv dismissed 89 NY2d 1030 [1997]). Thus, the propriety of that appraisal is the law of the case (see generally Bernstein v 1995 Assoc., 211 AD2d 560 [1995]). Petitioner was afforded a full and fair opportunity, to litigate the propriety of the Cushman & Wakefield appraisal when he was requested by the Surrogate to submit his own appraisal and plan for distribution, but he declined to avail himself of that opportunity (see generally People v Evans, 94 NY2d 499, 502 [2000]). Concur — Andrias, J.P., Sullivan, Ellerin, Williams and Lerner, JJ.