| Matter of Ferrara |
| 2008 NY Slip Op 03455 [50 AD3d 899] |
| April 15, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of George J. Ferrara, Deceased.Salvation Army, Respondent-Appellant; Dominick Ferrara et al.,Appellants-Respondents. |
—[*1] Reich Reich & Reich, P.C., White Plains, N.Y. (Lawrence R. Reich and Jeffrey A. Reich ofcounsel), for appellant-respondent Elizabeth Ferrara. Cadwalader, Wickersham & Taft, LLP, New York, N.Y. (Edwin David Robertson ofcounsel), for respondent-appellant.
In a proceeding pursuant to SCPA 2103, inter alia, to disclose and recover certain assetsalleged to be a part of the decedent's estate, (1) Dominick Ferrara and John Ferrara appeal, andElizabeth Ferrara separately appeals, as limited by their respective briefs, from so much of adecree of the Surrogate's Court, Rockland County (Berliner, S.), entered December 12, 2006, as,upon a decision of the same court dated December 12, 2006, made upon remittitur from theCourt of Appeals (7 NY3d 244 [2006]), is in favor of the Salvation Army and against them in theprincipal sum of $830,127, and the Salvation Army cross-appeals from so much of the samedecree as denied its motion for an award of prejudgment interest, and (2) Dominick Ferrara andJohn Ferrara appeal, as limited by their brief, and Elizabeth Ferrara separately appeals, from somuch of an order of the same court dated March 22, 2007, as, upon reargument, adhered to aprior determination denying their motion for a hearing on the issue of whether gifts of thedecedent's property made by Dominick Ferrara to himself were in the best interest of thedecedent, and denied their motion, inter alia, for a hearing to apportion liability.
Ordered that the decree is affirmed insofar as appealed from; and it is further,[*2]
Ordered that the decree is reversed insofar ascross-appealed from, on the law, and the matter is remitted to the Surrogate's Court, RocklandCounty, for the entry of an appropriate amended decree which includes an award of prejudgmentinterest; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the Salvation Army payable by theappellants-respondents appearing separately and filing separate briefs.
Upon a remittitur, a court is "without power to do anything except to obey the mandate of thehigher court" (Wiener v Wiener, 10AD3d 362, 363 [2004] [internal quotation marks omitted]; see Matter of Trager v Kampe, 16AD3d 426, 427-428 [2005]). An order or judgment entered by the lower court on a remittitur"must conform strictly to the remittitur" (Wiener v Wiener, 10 AD3d at 363 [internalquotation marks omitted]; Matter of Trager v Kampe, 16 AD3d at 428; Matter ofMinister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct.of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007 [1945], affd 270 AppDiv 993 [1946], affd 296 NY 822 [1947]). Here, in denying the motion of DominickFerrara, Elizabeth Ferrara, and John Ferrara (hereinafter collectively the Ferraras) for a hearingon the issue of whether gifts of the decedent's property made by Dominick Ferrara to himselfwere in the best interest of the decedent, the Surrogate's Court acted in accordance with theopinion of the Court of Appeals (see Matter of Ferrara, 7 NY3d 244, 254-255 [2006]).
However, under the circumstances, the Surrogate's Court should have granted the SalvationArmy's motion for an award of prejudgment interest. The decedent bequeathed his entireresiduary estate to the Salvation Army. The Salvation Army's "possession" of that property was"interfere[d] with" (CPLR 5001 [a]). Therefore, the matter must be remitted to the Surrogate'sCourt, Rockland County, for a computation of prejudgment interest and the entry of anappropriate amended decree.
The Ferraras' remaining contentions are without merit. Skelos, J.P., Covello, Eng andLeventhal, JJ., concur.