Rosen v. Raum — 191 A.D.2d 254

Majority

p. 254

Elaine Rosen, Appellant, v Robert Raum, Respondent.

[595 NYS2d 14]

—Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered October 2, 1992, which, inter alia, granted defendant’s motion for summary judgment and dismissed the complaint, unanimously affirmed, with costs.

In light of plaintiff’s unequivocal opposition to defendant’s accounting rendered on behalf of the estate at issue, which includes, inter alia, specific objections raised before the Surrogate concerning the accounting, and complaints made by plaintiff against defendant to several disciplinary bodies, it is clear that plaintiff did not rely upon the accounting in settling her claim against the estate. Accordingly, the instant claim sounding in fraud was properly dismissed.

p. 255

We also note that since plaintiffs claim for fraud against the co-executrix has already failed before the courts of this State, and since defendant’s alleged fraud is imputable to the co-executrix (since defendant is the agent of the co-executrix), the prior determinations inure to the benefit of defendant, and the instant claim must be dismissed (see, Chase Manhattan Bank v Perla, 65 AD2d 207 , 211; Werth v Martin, 79 AD2d 861 ).

We have considered all other claims and find them to be meritless. Concur — Milonas, J. P., Rosenberger, Kupferman and Ross, JJ.

Cases cited

Chase Manhattan Bank v. Perla 65 AD2d 207 N.Y. App. Div. 1978-12-15 at 211 p. 255