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Appellant’s Claim Barred Due to Res Judicata, Collateral Estoppel

Matter of A.

NY Slip Op 05842

The co-executor of the estate petitioned the court pursuant to 2103 to determine if certain funds were withheld from the estate of A. This appeal is from 2 Surrogate Court orders brought by A.S. Those orders denied AS her cross-motion pursuant to CPLR 3211(a)(5) to dismiss the petition regarding two bank accounts. This appeal is dismissed. The second order superseded the first. One bill of costs is awarded to petitioner, payable to A.S.

The decedent died in December 1982. Her two daughters were appointed executors. One sister, LS, commenced the proceeding under SCPA 2103, against the other sister. AS is seeking the return of certain bank accounts belonging to the decedent’s estate.

The petitioner identified a bank account opened by the decedent, with A.S. at Hudson Bank to use a convenience account. Petitioner reported that the decedent held a bank account at TD bank which was changed to a joint account with AS having the sole right of survivorship.

In May 2014, LS brought an action against TD bank alleging conversion under the UCC and seeking recovery of funds. The TD bank action was discontinued with prejudice. LS moved to amend this petition, and AS crossed moved under CPLR 3211(a)(5) to dismiss the Hudson City account as time-barred, and the TD account under res judicata and collateral estoppel. The SC granted the motion. In the first order appealed, the court denied the AS motion. In a renewal and reargument, the court adhered to their original decision. AS appeals.

With a motion to dismiss under CPLR 3211(a)(5) on the grounds of a statute of limitations, the movant bears the burden of proof. The movant must establish when the cause of action occurred (Rodeo Family Enters., LLC v Matte 99 AD3d 781, 783-784). A discovery proceeding under SCPA article 21 has been liked to an action for conversion and a 3-year statute of limitation has been applied (matter of Chung Li 950 AD3d 881). A conversion cause of action accrues, and the limitation period begins when the date of the conversion actually occurred (Vigilant Ins Co of Am v Housing Authority of City of El Paso, TX 87 NY2d 36, 44). The conversion doesn’t occur until the owner makes a demand for the return of the property and the other party refuses to return it.

AS failed to establish this burden and the statute of limitations had run. There was no wrongful act of possession until after the decedent’s death. AS didn’t establish a cause of action. This court agrees with the Appellate Court’s initial decision.

This court also agrees with the determination dismissing the amended petition as it relates to the TD bank account on the grounds of res judicata and collateral estoppel.

In applying res judicata, the court applies a pragmatic test and determines whether the understanding conforms to the parties understanding (Buyer v City of NY 115 AD3d 897). Collateral estoppel prevents a party from relitigating an issue already raised at a prior proceeding.

The TD bank action requires proof of different facts. Under these circumstances neither res judicata nor collateral estoppel bar AS’s claims

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