Remittitur or Remand

CPLR § 5524

Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04713 (2nd Dept. 2012)

Upon an opinion of the Court of Appeals dated June 3, 2010, this matter was remitted to the Supreme Court, Nassau County, to determine whether the defendants were entitled, under the terms of the parties' employment agreement, to a setoff derived from certain specified funds, if any, held by the plaintiff, against the amount of the plaintiff's recovery in this action (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 14 NY3d 898). The defendants contend, however, that contrary to the Supreme Court's interpretation of the Court of Appeals' decision and order, the remittal instructions did not preclude the Supreme Court from entertaining and granting their motion for leave to renew their prior motion for leave to amend their answer to include an affirmative defense based on breach of contract, and a counterclaim based on breach of fiduciary duty, and thereupon awarding them summary judgment dismissing the complaint based on the proposed affirmative defense and on the proposed counterclaim.

"[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith" (United States v Pink, 36 NYS2d 961, 965). "The judgment or order entered by the lower court on a remittitur must conform strictly to the remittitur, and it cannot afterwards be set aside or modified by the lower court" (Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007, affd 270 App Div 993, affd 296 NY 822).

If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it (see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006). Contrary to the defendants' contention, the Supreme Court correctly adhered to the terms of the Court of Appeals' remittitur in this matter (cf. Wiener v Wiener, 10 AD3d 362, 362).

The defendants' remaining contentions are either barred by the law of the case doctrine (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740), since they were previously determined by this Court (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 55 AD3d 538, revd on other grounds 14 NY3d 898), or without merit.

 Glassman v ProHealth Ambulatory Surgery Ctr., Inc., 2012 NY Slip Op 04714 (2nd Dept. 2012)

The defendants are not aggrieved by so much of the order appealed from as granted that branch of their motion which was to discharge or cancel an appeal bond filed by them on January 22, 2009 (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144). Moreover, the appeal from so much of the order as denied that branch of the defendants' motion which was to discharge or cancel an appeal bond filed by them on May 23, 2007, has been rendered academic, since the initial judgment that the bond was meant to secure has been superseded by an amended judgment entered August 10, 2011. Further, findings of fact and conclusions of law which do not grant or deny relief are not independently appealable (see Matter of Flamenbaum,AD3d, 2012 NY Slip Op 04165, *2 [2d Dept 2012]; Ramirez v City of New York, 90 AD3d 1009, 1009; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770, 771). Thus, no appeal lies from so much of the order as determined that the plaintiff is entitled to enforce an interlocutory judgment, entered on the consent of the parties, that awarded him an attorney's fee. The mere fact that the order appealed from contains language which the defendants deem adverse to their interests does not render them aggrieved by that order (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473; Mixon v TBV, Inc., 76 AD3d at 148-149). In any event, the award of the attorney's fee pursuant to the interlocutory judgment was incorporated into the amended judgment entered August 10, 2011, which we are affirming in a companion appeal (see Glassman v ProHealth Ambulatory Surgery Ctr., Inc.,AD3d [Appellate Division Docket No. 2011-08249, decided herewith]).

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