Wiener v Spahn

Wiener v Spahn 2014 NY Slip Op 08482 Decided on December 4, 2014 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 4, 2014
Tom, J.P., Sweeny, DeGrasse, Feinman, Gische, JJ.
652735/12 13662 13661

[*1] Edith Wiener, Plaintiff-Appellant,

v

Laura Spahn, Defendant-Respondent.

Schlam Stone & Dolan LLP, New York (Jeffrey M. Eilender of counsel), for appellant.

Anderson & Ochs, LLP, New York (Mitchell H. Ochs of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 17, 2013, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the first through third causes of action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 7, 2014, which denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the parties' mother's will contains no language indicating that noncompliance with the terms of paragraph 7 will result in forfeiture of a bequest thereunder, the first cause of action, which seeks forfeiture of all bequests defendant received under paragraph 7, fails to state a cause of action (Allen v Trustees of Great Neck Free Church , 240 AD 206 [2d Dept 1934], affd 265 NY 570 [1934]). Thus, notwithstanding that defendant's interests in the properties located in Westchester County that were bequeathed to her were not the subject of prior litigation and therefore are not barred by the doctrine of res judicata or collateral estoppel, the first cause of action was correctly dismissed.

The second and third causes of action, which arise from defendant's attempt to sell her interests in two Bronx properties in breach of the terms of the will, are barred by the doctrine of res judicata.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 4, 2014

CLERK