Matter of Hyman

Matter of Hyman 2010 NY Slip Op 08774 [78 AD3d 583] November 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter the Estate of Malcolm A. Hyman, Deceased. Bruce Hyman, as Coexecutor of Malcolm A. Hyman, Deceased, Respondent; Frederic Hyman, Appellant.

—[*1] Bryan Cave LLP, New York (David P. Kasakove of counsel), for appellant.

Schlesinger Gannon & Lazetera LLP, New York (Martin R. Goodman of counsel), for respondent.

Decree, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about December 10, 2008, which, to the extent appealed from as limited by the briefs, limited the conditional release and discharge to petitioner Bruce Hyman, unanimously modified, on the facts and in the exercise of discretion, the limitation removed, and otherwise affirmed, without costs.

When there is an inconsistency between a judgment or order and the decision upon which it is based, the decision controls, and such inconsistency may be corrected on appeal (see Green v Morris, 156 AD2d 331 [1989], lv denied 75 NY2d 705 [1990]; CPLR 5019 [a]). The Surrogate's decision faulted the parties equally for the prolonged administration and rejected petitioner's request that the coexecutors be released only as to estate tax matters, instead determining that the court "will discharge the fiduciary as to all matters and things." Nothing in the decision suggests that only petitioner was to be released and discharged, or that respondent, his coexecutor, was not entitled to a release and discharge, as indicated in the handwritten emendation to the settled decree. To the extent there is any ambiguity in the decision, review of the record as a whole, including the underlying motion papers and the proposed decrees submitted on notice, makes clear that the Surrogate's decision intended both coexecutors to be fully discharged (see Garrick Aug Assoc. Store Leasing v Scali, 278 AD2d 23 [2000]). Petitioner's argument on appeal that the court must have found respondent was not entitled to be discharged because of his conduct in connection with the administration of the estate was not raised before the Surrogate, and is inconsistent with the position in his motion papers requesting discharge of both coexecutors (see Federal Deposit Ins. Corp. v J & D Einbinder Assoc., 224 AD2d 655, 656 [1996]). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.