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
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 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 ; 2211 ; Matter of Schultz, 104 A.D.3d 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 A.D.3d 1259, 1260 ; see Senf v Staubitz, 11 A.D.3d 997, 997 ), regardless of whether our decision was correctly decided (see Bolm v Triumph Corp., 71 A.D.2d 429, 434 , lv dismissed 50 N.Y.2d 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
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 ... 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 A.D.3d 965, 966 , lv denied 7 N.Y.3d 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