Lind v Greenspan

Lind v Greenspan 2012 NY Slip Op 08404 Decided on December 6, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Román, Clark, JJ.
8713 112223/06

[*1]Karen Lind, et al., as Preliminary Executors of the Estate of Ezra M. Greenspan, etc., et al., Plaintiffs-Respondents,

v

Edith Wolf Greenspan, Defendant-Appellant, Marcia Gordon, Defendant.




Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty,
P.C., New York (Steven W. Wolfe of counsel), for appellant.
Harold Salant Strassfield & Spielberg, White Plains (Leonard
I. Spielberg of counsel), for respondents.

Order, Supreme Court, New York County (Lewis B. York, J.), entered November 22, 2011, which denied the motion for summary judgment by defendant-appellant to dismiss the complaint as against her, unanimously affirmed, without costs.

The claim in the wrongful death action at issue here did not arise from the same or related transactions as the claim in the Surrogate's Court turnover proceeding. Thus, the remaining claim for conscious pain and suffering in the wrongful death action is not barred by the principle of res judicata (Xiao Yang Chen v Fischer, 6 NY3d 94, 100 [2005]). Similarly, that remaining claim is not barred by the principle of collateral estoppel. The issues raised in the claim were not addressed, either in theory or in fact, in the Surrogate's Court proceeding (Kaufman v Eli
Lilly & Co., 65 NY2d 449, 456-457 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2012

CLERK