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

580
CA 12-02297
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF JON M. LADELFA, AS
ADMINISTRATOR OF THE GOODS, CHATTELS AND
CREDITS OF CHARLES MICHAEL LADELFA,               MEMORANDUM AND ORDER
DECEASED, PETITIONER-RESPONDENT.
----------------------------------------
GERALD A. CONIGLIO, OBJECTANT-APPELLANT.


JONES & SKIVINGTON, GENESEO (PETER K. SKIVINGTON OF COUNSEL), FOR
OBJECTANT-APPELLANT.


     Appeal from a modified decree of the Surrogate’s Court,
Livingston County (Dennis S. Cohen, S.), entered March 13, 2012. The
modified decree judicially settled the final account of Jon M.
LaDelfa, Administrator of the Goods, Chattels and Credits of Charles
Michael LaDelfa, deceased.

     It is hereby ORDERED that the modified decree so appealed from is
unanimously affirmed without costs.

     Memorandum: Objectant appeals from a modified decree of
Surrogate’s Court that settled the final account of petitioner, the
administrator of decedent’s estate, and, in doing so, denied
objectant’s claim against the estate for unpaid rent allegedly owed to
him by decedent. In a prior appeal involving the same parties and the
same claim against the estate, we held that, “[o]nce objectant’s claim
was allowed by petitioner, as the administrator, and no parties who
would be adversely affected by the claim filed objections thereto, the
claim was prima facie valid . . . Indeed, it was ‘just as effective .
. . as a judgment of a court of competent jurisdiction’ . . . The
Surrogate was thus required to ‘confirm the allowance . . . and direct
that [it] be paid’ . . . , and the Surrogate could not require
petitioner, as the administrator, to prove that the claim was legally
valid” (Matter of LaDelfa [Coniglio], 82 AD3d 1683, 1683-1684). We
modified the decree by granting objectant’s claim, and we remitted the
matter “for further proceedings” (id. at 1683). On remittal, the
Surrogate refused to sign petitioner’s proposed amended decree and, in
reliance on Matter of Stortecky v Mazzone (85 NY2d 518), denied
objectant’s subsequent motion seeking approval of his claim.

     Contrary to our statement in LaDelfa that a Surrogate is required
to confirm an accounting in the absence of an objection, the Court of
Appeals has held that a Surrogate has an independent, statutory duty
to “settle the account as justice requires . . . , [and] to require
the Surrogate to ‘rubber stamp’ the account because the parties do not
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                                                         CA 12-02297

object to it would vitiate [that] statutory directive . . . Indeed, it
would seem self-evident that if a Surrogate acts judicially in
approving an account and may not be compelled to enter a decree, then
the court must have the correlative power to deny a decree or, when
inquiry is warranted, to satisfy itself on questions arising during
the proceedings” (Stortecky, 85 NY2d at 524; see SCPA 201 [3]; 2211
[1]; Matter of Schultz, 104 AD3d 1146, 1149). Thus, to the extent
that our decision in LaDelfa held that a Surrogate is required to
confirm an accounting in the absence of an objection, the decision
should not be followed.

     It is well settled that, until a decision of this Court is
“ ‘modified or reversed by a higher court, . . . the trial court is
bound by our decision’ ” (J.N.K. Mach. Corp. v TBW, Ltd., 98 AD3d
1259, 1260; see Senf v Staubitz, 11 AD3d 997, 997), regardless of
whether our decision was correctly decided (see Bolm v Triumph Corp.,
71 AD2d 429, 434, lv dismissed 50 NY2d 801, 928). We thus conclude
that the Surrogate erred in failing to comply with our prior decision.
Nevertheless, this Court is not likewise required to follow our prior
decision under the doctrine of law of the case. Indeed, for the
reasons that follow, we conclude that we should not apply the doctrine
of law of the case herein, and we therefore affirm the modified decree
denying objectant’s claim against the estate.

     “As the doctrine of . . . law of the case is not one of
inflexible law, but permits a reasoned exercise of a certain degree of
discretion in its application, the better rule is that the doctrine
should not be utilized to accomplish an obvious injustice, or applied
where the former appellate decision was clearly, palpably, or
manifestly erroneous or unjust . . . [T]he effect of a prior ruling by
an appellate court in a later appeal before that court, or in a
subsequent stage of the same appeal before that court, presents the
problem of balancing the interest in foreclosing reconsideration of
the prior decision with the desire for a just result . . . Most
jurisdictions still consider the former adjudication binding except
where the prior decision was clearly erroneous or worked manifest
injustice” (People v Palumbo, 79 AD2d 518, 524-525, affd 53 NY2d 894
[internal quotation marks omitted]).

     We recognize that our earlier decision was “clearly erroneous”
(Palumbo, 79 AD2d at 525 [internal quotation marks omitted]), as
“shown by contrary authority emanating from [the Court of Appeals,]
whose rulings . . . are controlling” (Schopler, E. H., Annotation,
Erroneous Decision as Law of the Case on Subsequent Appellate Review,
87 ALR2d 271, § 2; see Stortecky, 85 NY2d at 524). We also conclude
that “correction of the error made on the former appeal [will] create
no injustice or hardship, [inasmuch as] no change has been made in the
status of the parties in reliance upon the ruling in the former
appeal” (Schopler, E. H., 87 ALR2d 271 at § 15 [a]). No one has
“surrendered, in reliance thereon, substantial and valuable rights
[that] cannot be restored by the court, and . . . no rights of
property have become vested” (id.). Moreover, “the decision on the
first appeal was erroneous as a matter of substantive law and this
error [will] . . . affect[ ] not only the parties to the proceeding .
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                                                         CA 12-02297

. . but also, by virtue of the strength of the former decision as a
precedent, all other persons in the jurisdiction” (id. at § 16).

     In accordance with the controlling decision of the Court of
Appeals in Stortecky, we conclude that the Surrogate retained the
independent authority to review the final account submitted by
petitioner, and we further conclude that the Surrogate’s determination
that “a true landlord/tenant relationship . . . absolutely, positively
. . . [did not] exist” was not against the weight of the credible
evidence (see generally Matter of Piotrowski, 25 AD3d 965, 966, lv
denied 7 NY3d 703). There was no rental agreement or arrangement
between objectant and the deceased, and the deceased “never paid rent”
over a period of 28 to 32 months. While objectant may have performed
“a favor” for decedent to “help him out,” the Surrogate determined
that objectant’s generosity did not establish a legal claim against
the estate. We see no basis to disturb the Surrogate’s findings,
“which are entitled to great weight inasmuch as they ‘hinged on the
credibility of the witnesses’ ” (Matter of Makitra, 101 AD3d 1579,
1581; see generally Matter of Poggemeyer, 87 AD2d 822, 823).




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
