| Estate of Claydon v Ehring |
| 2009 NY Slip Op 06091 [65 AD3d 723] |
| August 6, 2009 |
| Appellate Division, Third Department |
| Estate of Helen S. Claydon, Deceased, Respondent, v DanielEhring et al., Appellants. |
—[*1] Goldberger & Kremer, Albany (Bryan J. Goldberger of counsel), for Jami Ehring, appellant. Joshua A. Sabo, Troy, for respondent.
Kane, J. Appeal from an order of the Supreme Court (McDonough, J.), entered August 12,2008 in Albany County, which, among other things, denied defendants' motion to dismiss thecomplaint.
Defendant Daniel Ehring served as the executor of plaintiff, but was ultimately removed andfound liable for damages caused to it by various breaches of his fiduciary duty and negligence.In particular, pursuant to a March 11, 2005 decision and order, Surrogate's Court (Doyle, J.)ordered Ehring to pay the estate $144,859.95 for "tax penalties and interest" and $213,019 for hisnegligence in managing plaintiff's portfolio. The decision and order also denied Ehring's crossmotion for executor's commissions and legal fees. While Ehring filed a notice of appeal from theMarch 2005 decision and order, he never perfected it.
In November 2007, plaintiff commenced this action against Ehring and his wife, seeking toset aside a conveyance of land between them and to enforce the $357,878.95 judgment.Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) asserting that, underUniform Rules for Surrogate's Court (22 NYCRR) § 207.37 and CPLR 2220, the prioraction had been abandoned because plaintiff failed to judicially settle the March 2005 decisionand order [*2]and also asserting that the doctrine of laches barredenforcement of the judgment. Supreme Court (McDonough, J.) denied the motion, promptingthis appeal.
We find no merit to defendants' argument that Uniform Rules for Surrogate's Court (22NYCRR) § 207.37 and CPLR 2220 provide a valid basis upon which to dismiss thisaction. As relevant here, the March 2005 decision and order ordered that "petitioner's motion forsummary judgment (seeking to surcharge Ehring) is granted in its entirety" and that "Ehring'scross motion (seeking commissions and fees) is denied." It then stated that "[t]his constitutesboth the decision and order of the court. Petitioner (the temporary administrator) is directed tobring accounts to date and submit decree for judicial settlement of same." Relying on this lattersentence, defendants argue that no proposed order or judgment, with notice of settlement, wasever served on Ehring, thus resulting in abandonment under Uniform Rules for Surrogate's Court(22 NYCRR) § 207.37. We are unpersuaded.
The March 2005 decision and order clearly and unambiguously directed Ehring to reimburseplaintiff in the amount of $357,878.95 and there was no direction or need to judicially settle thisaspect of it. The reference to judicial settlement clearly pertained to that aspect of the proceedingthat dealt with the temporary administrator's obligation to bring his accounts to date and to havesuch accounts judicially settled. Because money judgments fall outside the ambit of 22 NYCRR207.37, Supreme Court properly rejected the claim that the subject judgment was abandoned(compare Uniform Rules for Sur Ct [22 NYCRR] § 207.37, with UniformRules for Trial Cts [22 NYCRR] § 202.48; see Farkas v Farkas, 11 NY3d 300, 308-309 [2008]; Funk vBarry, 89 NY2d 364, 367 [1996]; Gibbons v Jackson Hgts. Hosp., 18 AD3d 428, 428-429 [2005];Matter of Greek Peak v Armstrong, 236 AD2d 181, 184 [1997]).
We likewise find that Supreme Court properly declined to dismiss the complaint on the basisof laches. In short, the conduct alleged by Ehring as giving rise to this defense—an allegedverbal agreement between himself and decedent's niece concerning enforcement of the judgmentagainst him—was flatly denied by the niece thus rendering any relief on this groundinappropriate at this juncture.
Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.