Law of the Case
State Farm Ins. Co. v Frias, 2009 NY Slip Op 07825 (App. Div., 2nd, 2009)
State Farm argued that, because the three nondefaulting defendants
had not proposed a counter-judgment, had not opposed State Farm's
proposed judgment, had not moved for leave to renew or reargue, had not
moved to vacate the judgment, and had not appealed from the judgment,
they were estopped from challenging the declarations contained in it.
Luccme and Urena opposed State Farm's motion and, in an order entered
April 10, 2008, the Supreme Court granted the motion based on the
failure of the nondefaulting defendants to oppose the proposed
judgment. Luccme and Urena appeal from the resulting judgment. We
Inasmuch as State Farm initially moved for leave to enter a
default judgment against the defaulting defendants only, the resulting
judgment binds only those defendants, and may not be given preclusive
effect to deprive Luccme and Urena, who appeared in the action, of
their right to litigate the issues pertaining to coverage (see American Motorists Ins. Co. v North Country Motors, 57 AD2d 158, 160). Accordingly, we reverse the order insofar as appealed from.
But what about privity.
Shelley v Silvestre, 2009 NY Slip Op 07822 (App. Div., 2nd, 2009)
"Under the doctrine of res judicata, a final disposition on the merits
bars litigation between the same parties of all other claims arising
out of the same transaction or out of the same or related facts, even
if based upon a different theory involving materially different
elements of proof. The rule applies not only to claims litigated but
also to claims that could have been raised in the prior litigation" (Matter of City of New York v Schmitt, 50 AD3d 1032, 1033 [citations omitted]; see Matter of Reilly v Reid, 45
NY2d 24, 30). The claims raised in the instant complaint were raised or
could have been raised during a prior action between the same parties,
which was disposed of on the merits. Accordingly, the plaintiffs'
complaint was properly dismissed as barred by the doctrine of res
judicata (see Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404-405; Slavin v Fischer, 160 AD2d 934, 934-935).
Lighthouse 925 Hempstead, LLC v Citibank, N.A., 2009 NY Slip Op 07597 (App. Div., 2nd, 2009)
"Res judicata serves to bar future litigation between the same
parties or those in privity with the parties of a cause of action
arising out of the same transaction or series of transactions as a
cause of action that was raised in a prior proceeding" (Winkler v Weiss, 294 AD2d 428, 429; see Matter of ADC [*2]Contr. & Constr., Inc. v Town of Southampton,
50 AD3d 1025, 1026). The fact that causes of action may be stated
separately or invoke different legal theories will not permit
relitigation of claims (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; see also Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d at 1025).
Here, both this action and the prior action arise from the same
transaction, namely the defendants' alleged failure to remove a
drive-thru ATM. The fact that Lighthouse now invokes the legal theory
of trespass instead of breach of contract, which it argued in the prior
action, will not permit it to relitigate the claim. Therefore, the
Supreme Court properly granted the defendants' motion for summary
judgment dismissing the complaint on the ground that it was barred by
Frankson v Brown & Williamson Tobacco Corp., 2009 NY Slip Op 06799 (App. Div., 2nd, 2009)
As a general rule, the law of the case doctrine precludes this Court
from re-examining an issue which has been raised and decided against a
party on a prior appeal where that party had a full and fair
opportunity to address the issue (see People v Evans, 94 NY2d 499, 502; Allison v Allison, 60 AD3d 711; Lipp v Port Auth. of N.Y. and N.J., 57 AD3d 953, 954; Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177,
1197). Unlike res judicata and collateral estoppel, which "are rigid
rules of limitation," the law of the case doctrine "is a judicially
crafted policy that expresses the practice of courts generally to
refuse to reopen what has been decided, [and is] not a limit to their
power'" (People v Evans, 94 NY2d at 503, quoting Messenger v Anderson, 225 US 436, 444). Thus, while the law of the case doctrine is intended to foster "orderly convenience" (Foley v Roche, 86
AD2d 887, 887), it is not an absolute mandate which limits an appellate
court's power to reconsider issues where there are extraordinary
circumstances, "such as subsequent evidence affecting the prior
determination or a change of law" (Lipp v Port Auth. of N.Y. and N.J., 57 AD3d at 954; see People v Evans 94 NY2d at 503; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809; Foley v Roche, 86 AD2d at 887).
Guided by these principles, we agree that the law of the case
doctrine precludes us from reconsidering the issues of whether the
trial court applied an appropriate standard for the admissibility of
scientific evidence, and whether punitive damages were properly
assessed against the Tobacco Institute and the Tobacco Council. These
issues were raised by the defendants and decided against them on the
prior appeals, and there are no new factual circumstances or change in
the law which would warrant our reconsideration (see Pekich v James Lawrence, Inc., 38 AD3d 632, 633; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407; Wendy v Spector, 305 AD2d 403).
All the bold is mine.