Opinion
November 10, 1992
Appeal from the Surrogate's Court, New York County (Eve Preminger, S., Marie Lambert, S.).
This proceeding is a dispute between brother and sister, wherein the sister was the trustee of a trust created by their mother for the benefit of the brother and his family. The proceeding seeks judicial settlement of an accounting of two trusts, of which the petitioner Dr. Wynyard is a beneficiary, and his sister, the respondent Rotraut Beiny, was a trustee until June 1, 1989. The trusts own 45% of the shares of The Antique Company of New York, a corporation which owns and deals in antique porcelains and other objects of art.
The facts are set forth in our prior decisions (Matter of Beiny, 129 A.D.2d 126, rearg denied 132 A.D.2d 190, lv dismissed 71 N.Y.2d 994).
The respondent Rotraut Beiny contends that the Surrogate erred in finding her in contempt of prior court orders pertaining to certain Lichtenstein trusts since she does not control the trustees of these trusts. However, the issue of control of these trusts was resolved in a prior proceeding resulting in a finding of contempt, which was affirmed by this Court, and we see no need to re-establish this point at a plenary hearing. Although the identity of the trustees has changed since the time of entry of the prior order, the present record does not disclose how or why this was accomplished nor has the respondent provided any factual basis to suggest that the current trustees are any less susceptible to her influence. Her contention that law of the case cannot divest her of the right to a plenary hearing in a quasi-criminal proceeding is without merit since the analogous doctrine of collateral estoppel, while used sparingly outside the civil arena, is unquestionably applicable to criminal matters (see, People v Berkowitz, 50 N.Y.2d 333; People v Aguilera, 185 A.D.2d 772).
With respect to the appeal from the award of fees and commissions to the temporary receiver and counsel hired by him, we find that the Surrogate erred in awarding such fees without first conducting a hearing to determine entitlement to such fees and the value of services rendered (515 E. 12th St. Assocs. v Gentile, 160 A.D.2d 187; Matter of Ronan Paint Corp., 97 A.D.2d 283, rearg granted and order vacated 98 A.D.2d 413). Moreover, on this sparse record, we are unable to ascertain which factors the Surrogate considered in arriving at the maximum statutory fee awarded to the receiver (Weckstein v Breitbart, 141 A.D.2d 347).
We have considered the parties' remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Kupferman and Kassal, JJ.