In re the Estate of Lupoli

Appellate Division of the Supreme Court of New York

In re the Estate of Lupoli

295 A.D.2d 612, 745 N.Y.S.2d 429, 2002 N.Y. App. Div. LEXIS 6713

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 2002

StatusPublished

Cited by1 cases

This text of 295 A.D.2d 612 (In re the Estate of Lupoli) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Lupoli, 295 A.D.2d 612, 745 N.Y.S.2d 429, 2002 N.Y. App. Div. LEXIS 6713 (N.Y. Ct. App. 2002).

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Opinion

—In a proceeding to settle the intermediate account of the petitioner Peter Lupoli, as Administrator CTA of the estate of Raffaele Lupoli, also known as Raphael Lupoli, Matthew Lupoli ap[613]*613peals, as limited by his brief, from so much of an amended decree of the Surrogate’s Court, Queens County (Nahman, S.), dated July 18, 2001, as, upon directing him to pay to the petitioner the principal sum of $1,846,179, decreed that the petitioner may have execution thereon.

Ordered that the amended decree is affirmed insofar as appealed from, with costs.

Assuming that the appellant may raise the issue on this appeal (cf. Syms v Mayor of N.Y., 105 NY 153; La Grange v Merritt, 96 App Div 61), the amended decree under review properly authorized the petitioner to execute on the monetary award contained in the amended decree. We have previously held that a decree of the Surrogate’s Court which contains such an award may be docketed in the office of the County Clerk whereupon it becomes the equivalent of a Supreme Court judgment, and whereupon “all of the devices of CPLR article 52 become available” (Matter of Lupoli, 275 AD2d 44, 48). The presence, in the amended decree, of the language complained of by the appellant does not constitute the actual issuance of an execution by the Surrogate’s Court, and hence does not violate SCPA 605 (see Matter of Lupoli, supra at 48-49). Contrary to the appellant’s further contention, the presence of this language in the amended decree does not violate the doctrine of the law of the case.

For these reasons, the amended decree is affirmed insofar as appealed from. Smith, J.P., Friedmann, Adams and Townes, JJ., concur.

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—In a proceeding to settle the intermediate account of the petitioner Peter Lupoli, as Administrator CTA of the estate of Raffaele Lupoli, also known as Raphael Lupoli, Matthew Lupoli ap[613]*613peals, as limited by his brief, from so much of an amended decree of the Surrogate’s Court, Queens County (Nahman, S.), dated July 18, 2001, as, upon directing him to pay to the petitioner the principal sum of $1,846,179, decreed that the petitioner may have execution thereon.

Ordered that the amended decree is affirmed insofar as appealed from, with costs.

Assuming that the appellant may raise the issue on this appeal (cf. Syms v Mayor of N.Y., 105 NY 153; La Grange v Merritt, 96 App Div 61), the amended decree under review properly authorized the petitioner to execute on the monetary award contained in the amended decree. We have previously held that a decree of the Surrogate’s Court which contains such an award may be docketed in the office of the County Clerk whereupon it becomes the equivalent of a Supreme Court judgment, and whereupon “all of the devices of CPLR article 52 become available” (Matter of Lupoli, 275 AD2d 44, 48). The presence, in the amended decree, of the language complained of by the appellant does not constitute the actual issuance of an execution by the Surrogate’s Court, and hence does not violate SCPA 605 (see Matter of Lupoli, supra at 48-49). Contrary to the appellant’s further contention, the presence of this language in the amended decree does not violate the doctrine of the law of the case.

For these reasons, the amended decree is affirmed insofar as appealed from. Smith, J.P., Friedmann, Adams and Townes, JJ., concur.

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295 A.D.2d 612, 745 N.Y.S.2d 429, 2002 N.Y. App. Div. LEXIS 6713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-lupoli-nyappdiv-2002.

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