Wiener v. Spahn

Appellate Division of the Supreme Court of New York

Wiener v. Spahn

123 A.D.3d 448, 999 N.Y.S.2d 3

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

DecidedDecember 4, 2014

Docket652735/12 13662 13661

StatusPublished

This text of 123 A.D.3d 448 (Wiener v. Spahn) 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.

Bluebook

Wiener v. Spahn, 123 A.D.3d 448, 999 N.Y.S.2d 3 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Eileen Bransten, J), entered July 17, 2013, which, insofar as appealed from as limited by the briefs, granted defendant’s motion to dismiss the first through third causes of action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 7, 2014, which denied plaintiffs motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the parties’ mother’s will contains no language indicating that noncompliance with the terms of paragraph seven will result in forfeiture of a bequest thereunder, the first cause of action, which seeks forfeiture of all bequests defendant received under paragraph seven, fails to state a cause of action (Allen v Trustees of Great Neck Free Church, 240 App Div 206 [2d Dept 1934], affd 265 NY 570 [1934]). Thus, notwithstanding that defendant’s interests in the properties located in Westchester County that were bequeathed to her were not the subject of prior litigation and therefore are not barred by the doctrine of res judicata or collateral estoppel, the first cause of action was correctly dismissed.

The second and third causes of action, which arise from defendant’s attempt to sell her interests in two Bronx properties in breach of the terms of the will, are barred by the doctrine of res judicata.

Concur — Tom, J.P., Sweeny, DeGrasse, Feinman and Gische, JJ.

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Order, Supreme Court, New York County (Eileen Bransten, J), entered July 17, 2013, which, insofar as appealed from as limited by the briefs, granted defendant’s motion to dismiss the first through third causes of action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 7, 2014, which denied plaintiffs motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the parties’ mother’s will contains no language indicating that noncompliance with the terms of paragraph seven will result in forfeiture of a bequest thereunder, the first cause of action, which seeks forfeiture of all bequests defendant received under paragraph seven, fails to state a cause of action (Allen v Trustees of Great Neck Free Church, 240 App Div 206 [2d Dept 1934], affd 265 NY 570 [1934]). Thus, notwithstanding that defendant’s interests in the properties located in Westchester County that were bequeathed to her were not the subject of prior litigation and therefore are not barred by the doctrine of res judicata or collateral estoppel, the first cause of action was correctly dismissed.

The second and third causes of action, which arise from defendant’s attempt to sell her interests in two Bronx properties in breach of the terms of the will, are barred by the doctrine of res judicata.

Concur — Tom, J.P., Sweeny, DeGrasse, Feinman and Gische, JJ.

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Bluebook (online)

123 A.D.3d 448, 999 N.Y.S.2d 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiener-v-spahn-nyappdiv-2014.

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