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Supreme Court, Appellate Division, First Department, New York.

Franka Mimica CECUK, et al., Plaintiffs-Appellants, v. Susan Heimlich MacADOO, et al., Defendants-Respondents.

Decided: June 14, 2001

NARDELLI, J.P., TOM, ELLERIN, BUCKLEY and MARLOW, JJ. Curtis E. Pew, for Plaintiffs-Appellants. Charles Palella, for Defendants-Respondents.

Order, Supreme Court, New York County (Louis York, J.), entered January 9, 2001, which, inter alia, granted defendants' cross motion to dismiss the action, without prejudice to plaintiffs' right to commence an appropriate action or proceeding to enforce any final judgment for a sum certain which they may obtain in the courts of Germany, unanimously affirmed, without costs.

 Plaintiffs are seeking distribution of assets in two accounts being held in New York by Merrill Lynch, Pierce Fenner & Smith, Inc. Plaintiffs premise their entitlement to the account assets on a Chilean judgment, which declares their right, under German Law, to a statutory share of one-third of the estate of the deceased German citizen Guillermo Heimlich Bessel a/k/a Wilhelm George Walter Heimlich, and have moved for summary judgment in lieu of complaint pursuant to CPLR 3213, asserting that the judgment is entitled to recognition and enforcement in this jurisdiction pursuant to CPLR article 53.   The Chilean judgment, however, is not for a sum certain, and, indeed, was modified by the Chilean Supreme Court in a manner which specifically contemplated further proceedings to determine the amount to which plaintiffs were entitled.   The provisions of CPLR article 53 and CPLR 3213 are, therefore, inapplicable (see CPLR 5301 and 3213;  see, generally, Lenchyshyn v. Pelko Elec., Inc., 281 A.D.2d 42, 723 N.Y.S.2d 285;  and see, Becker v. Becker, 143 Misc.2d 500, 502, 541 N.Y.S.2d 699;  McMillan v. Williams, 116 Misc.2d 171, 175, 455 N.Y.S.2d 523).   Nor would discretionary principles of comity (see, Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574, 427 N.Y.S.2d 604, 404 N.E.2d 726;  Matter of the Estate of Brown, 120 Misc.2d 799, 466 N.Y.S.2d 988) have been properly utilized to enforce the subject judgment against the account assets, particularly since at the time this action was commenced, proceedings to value the Heimlich estate, and, accordingly, any share in that estate to which plaintiffs might be entitled under the Chilean judgment, were being conducted in Germany.