| Lind v Greenspan |
| 2012 NY Slip Op 08404 [101 AD3d 428] |
| December 6, 2012 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Karen Lind et al., as Preliminary Executors of Ezra M. Greenspan,
Also Known as Ezra Greenspan, Deceased, et al., Respondents, v Edith Wolf Greenspan, Appellant, et al., Defendant. |
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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]). Concur—Gonzalez, P.J., Sweeny, Richter, Román and Clark, JJ. [Prior Case History: 2011 NY Slip Op 33060(U).]