| Matter of Cohn |
| 2007 NY Slip Op 09772 [46 AD3d 680] |
| December 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Herman Cohn, Deceased. HerbilHolding Co. et al., Respondents; G.K.B. Enterprises, LLC, et al.,Appellants. |
—[*1] Crystal & Donohue, New York, N.Y. (James P. Donohue, Jr., of counsel), forrespondents.
In an action, inter alia, for an accounting and to recover damages for breach of fiduciary duty,which was transferred from the Supreme Court, Nassau County, to the Surrogate's Court, NassauCounty, the defendants G.K.B. Enterprises, LLC, Saal Corp., C.D. Holding, Co., and GladysBletter, individually and doing business as GB Enterprises, appeal, as limited by their brief, fromso much of a decree of the Surrogate's Court, Nassau County (Riordan, S.), dated June 13, 2006,as, after a hearing on damages, is in favor of the plaintiff Herbil Holding Co., and against thedefendant Gladys Bletter in the principal sums set forth in the first decretal paragraph,subparagraphs 11, 12, 13, 15, 17, 18, 19 and 21 through 25, and in favor of the plaintiff WilliamS. Cohn and against the defendant Gladys Bletter in the principal sum of $60,463.42.
Ordered that the appeals by the defendants G.K.B. Enterprises, LLC, Saal Corp., and C.D.Holding Co. are dismissed, as they are not aggrieved by the decree (see CPLR 5511); andit is further,[*2]
Ordered that the decree is affirmed insofar as appealedfrom by Gladys Bletter, individually and doing business as GB Enterprises; and it is further,
Ordered that one bill of costs is awarded to the respondents payable by the appellant GladysBletter, individually and doing business as GB Enterprises.
In 1999 the plaintiffs Herbil Holding Co. (hereinafter Herbil), William S. Cohn (hereinafterCohn), and Constance Klein Ecker, as executrix of the estate of Herman Cohn, commenced thepresent action in the Supreme Court, Nassau County, against Gladys Bletter (hereinafter Bletter)and three business entities owned or controlled by her. In essence, the plaintiffs sought anaccounting and damages for breach of fiduciary duty in connection with a series of joint venturesthat were formed to purchase real property tax liens in Nassau County.
In 2000 the action was removed to the Surrogate's Court, Nassau County, because it affectedthe administration of the decedent's estate. In January 2004 the Surrogate's Court struck thedefendants' answer for the willful failure to comply with the plaintiffs' discovery demands. On aprior appeal, this Court affirmed that order (see Matter of Cohn, 15 AD3d 655 [2005]). The present appeal isfrom so much of the decree dated June 13, 2006, as, after a hearing on the issue of damages, is infavor of Herbil and Cohn and against Bletter, awarding certain sums to Herbil and Cohn.
Since Bletter did not object to the appraiser's testimony or his appraisal reports, she failed topreserve the valuation issues for appellate review. An appellate court should not, and will not,consider different legal theories or new questions of fact, if proof might have been offered torefute or overcome them had they been presented in the court of first instance (see Schnupp vCapizzi, 272 AD2d 464, 465 [2000]; Gross v Aetna Cas. & Sur. Co., 240 AD2d 468,469 [1997]; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561 [1986]).
Moreover, since Bletter did not respond to five notices to admit, the facts set forth in thosenotices are deemed to be true for the purpose of this appeal (see CPLR 3123 [b];Carlson v Travelers Ins. Co., 35 AD2d 351, 353 [1970]). Those facts establish thatBletter breached her fiduciary duties to Herbil by, inter alia, failing to account for and distributecertain income, and failing to allow third parties to acquire certain properties (see Schantz vOakman, 163 NY 148 [1900]).
In addition, the Surrogate's Court providently exercised its discretion by allowing theplaintiffs to amend their pleadings to conform to the proof of damages adduced at the hearing(see CPLR 3025 [c]). Contrary to Bletter's contention, there was no prejudice or unfairsurprise because the notices to admit and the pretrial statement of issues afforded her amplenotice of the damages claims, and she failed to show that the amendments hindered thepreparation of her case or prevented her from taking any measures in support of her position(see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Schonfeld vBrody, 220 AD2d 572 [1995]).
Bletter's remaining contentions are without merit. Santucci, J.P., Krausman, Lifson andMcCarthy, JJ., concur.