In re Estate of Dugan

In a proceeding pursuant to EPTL 11-4.6 for leave to execute upon a judgment recovered against an estate, the appeal is from an order of the Surrogate’s Court, Rockland County (Weiner, S.), dated December 15, 1987, which dismissed the counterclaims asserted in the estate’s answer. Ordered that the order is affirmed, with costs payable to the respondent out of the estate. Contrary to the appellant administrator’s contention, the Surrogate’s Court properly dismissed the counterclaims which challenged the validity of a default judgment procured by the petitioner in the Superior Court of the State of New Jersey. Notably, the appellant previously raised and litigated the claims of fraudulent conduct on the part of the petitioner in obtaining the default judgment, when the appellant unsuccessfully sought to vacate the judgment in the New Jersey Superior Court and on appeal to the Superior Court of New Jersey Appellate Division. Similarly, the appellant unsuccessfully raised these same claims in opposition to the petitioner’s application in the Supreme Court, Rockland County, for sum 942 mary judgment in lieu of complaint (CPLR 3213) based on the New Jersey judgment, which resulted in a judgment in favor of the petitioner in the principal amount of $22,943.79. Under these circumstances, the Surrogate’s Court properly refused to relitigate the issues previously decided by the New Jersey courts as well as the Supreme Court, Rockland County (see, Matter of Braker, 127 Misc 2d 894, mod on other grounds 123 AD2d 585). Mollen, P. J., Brown, Lawrence and Spatt, JJ., concur.