        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

322
CA 15-01481
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


BEVERLY A. ZOELLER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LAKE SHORE SAVINGS BANK, DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, BUFFALO (DANIEL B. MOAR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ROBSHAW & VOELKL, P.C., WILLIAMSVILLE (JEFFREY F. VOELKL OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered April 30, 2015. The order, insofar as
appealed from, denied defendant’s motion for summary judgment
dismissing plaintiff’s complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this negligence and breach of
contract action seeking damages for defendant’s alleged improper
and/or unauthorized removal of her as a beneficiary of three bank
accounts maintained by her mother with defendant. Plaintiff’s mother
(hereafter, decedent) died on January 22, 2008, and the Public
Administrator was appointed to administer her estate. The three
accounts in question were marshaled by the Public Administrator and
listed as assets of the estate in the judicial accountings in
Surrogate’s Court. Plaintiff appeared in the Surrogate’s Court
proceeding and raised objections in opposition to the petition for
judicial settlement, but her objections did not address the accounts
at issue. The Surrogate issued a final decree settling the accounts
of the Public Administrator, and the funds from the three accounts
were paid to decedent’s creditors and otherwise distributed in
accordance with the decree. Defendant now appeals from that part of
an order denying its motion for summary judgment dismissing
plaintiff’s complaint on the ground of, inter alia, res judicata. We
reverse the order insofar as appealed from, grant the motion, and
dismiss the complaint.

     Initially, we note that the motion ground advanced by defendant
is more specifically characterized as offensive collateral estoppel,
which is “a component of the broader doctrine of res judicata”
                                 -2-                           322
                                                         CA 15-01481

(Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485; see generally
Goldstein v Consolidated Edison Co. of N.Y., 93 AD2d 589, 590-591,
affd 62 NY2d 936, cert denied 469 US 1210). Here, defendant contends
that the prior decree of the Surrogate is conclusive on the issue
whether the three bank accounts were assets of decedent’s estate or
the sole property of plaintiff. It is well settled that an accounting
decree is “conclusive as to issues that were decided as well as those
that could have been raised in the accounting” (Matter of Hunter, 4
NY3d 260, 270; see Pray v Hegeman, 98 NY 351, 358). We reject
plaintiff’s contention that the doctrine of res judicata is not
available to defendant as a defense because defendant was not a party
to the Surrogate’s Court proceeding. The “ ‘doctrine of mutuality’ is
a dead letter” in New York (B. R. DeWitt, Inc. v Hall, 19 NY2d 141,
147). “[T]he fact that a party has not had his day in court on an
issue as against a particular litigant is not decisive in determining
whether the defense of res judicata is applicable” (Israel v Wood
Dolson Co., 1 NY2d 116, 119). “New York law has now reached the point
where there are but two necessary requirements for the invocation of
the doctrine of collateral estoppel. There must be an identity of
issue which has necessarily been decided in the prior action and is
decisive of the present action, and, second, there must have been a
full and fair opportunity to contest the decision now said to be
controlling” (Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65,
71).

     We conclude that the issue whether the three bank accounts were
assets of decedent’s estate or the sole property of plaintiff is
identical to the issue finally determined by the Surrogate’s decree.
With respect to the full and fair opportunity to litigate the proper
ownership of the accounts, we further conclude that Surrogate’s Court
was clearly an appropriate forum for plaintiff to have raised and
litigated that issue (see Matter of Magacs, 227 AD2d 760, 760-761;
Matter of Steinberg, 107 AD2d 811, 811, lv denied 64 NY2d 611; see
also Matter of Liebman, 189 Misc 282, 283-284). Moreover, plaintiff
had available to her the alternate procedural pathway of filing a
claim in order to litigate the ownership of the accounts (see SCPA
2105; Matter of Southmayd, 59 AD2d 956, 956-957; see generally Matter
of Glen, 247 App Div 518, 519, affd 272 NY 530, rearg denied 272 NY
640). Nonetheless, plaintiff failed to challenge the ownership of the
accounts notwithstanding the full and fair opportunity to do so in
Surrogate’s Court. We therefore conclude that the Surrogate’s decree
is conclusive as to the ownership of the accounts and that defendant
is entitled to summary judgment dismissing the complaint.


     In light of our determination, we do not consider defendant’s
remaining contentions.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
