
    In the Matter of Robert A. Kahn, as Conservator of Mildred Griffin, as Conservatee, Respondent. Aetna Casualty and Surety Company, Appellant.
   Order, Supreme Court, Bronx County (Bertram Katz, J.), entered August 24, 1990, surcharging the prior Conservator Ruth Griffin Clark the sum of $205,426.79 and directing Clark to pay the Estate of the Conservatee said sum or, in the event she failed to make such payment, directing appellant Aetna to pay said sum to the extent of its bond, unanimously affirmed, without costs.

By a prior order, Ruth Clark was removed as conservator and surcharged the sum of $56,700.16. Thereafter, the Administrator of the Estate of the deceased Conservatee made a claim against such prior conservator for assets received by the prior conservator, but not accounted for, which resulted in the order now on appeal surcharging the prior conservator an additional sum totalling, together with the sum surcharged on the prior order, $205,426.79.

Contrary to Aetna’s claim, the prior order did not bar consideration of the claims here asserted by the Administrator. The prior order was conclusive only as to those matters embodied therein. (Matter of Schaefer, 18 NY2d 314; Matter of Williams, 1 AD2d 1022.) The claims presented by the Administrator arose out of facts and circumstances distinguishable from those resolved by the prior order. Thus, the effect of the omission of these assets from the prior accounting precludes application of res judicata to bar their consideration. (Supra.)

Aetna’s claim that the evidence adduced did not establish that the prior conservator had received certain property under the conservatorship is unpersuasive. The affirmation of counsel, together with documents from various agencies, established that social security payments and retirement payments had been made in the name of the prior conservator. Moreover, the prior conservator admitted receipt of these and other sums. Accordingly, the determination of the court was based upon competent evidence. (See, Getlan v Hofstra Univ., 41 AD2d 830.) Concur — Carro, J. P., Ellerin, Wallach, Kupferman and Kassal, JJ.  