Admissions, formal and informal

Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 2014 NY Slip Op 05813 [1st Dept 2014]

Defendant's formal judicial admission in its answer is dispositive (see People v Brown, 98 NY2d 226, 232 n 2 [2002]; GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011] [Richter, J., concurring]; Performance Comercial [*2]Importadora E Exportadora Ltda v Sewa Intl. Fashions Pvt. Ltd., 79 AD3d 673 [1st Dept 2010] [allegation in complaint]). Moreover, defendant's attorney's informal judicial admission that the air conditioners "admittedly encroach" on plaintiff's air space is some evidence of the encroachment (see Matter of Union Indem. Ins. of N.Y., 89 NY2d 94, 103 [1996]; Leonia Bank v Kouri, 3 AD3d 213, 220 [1st Dept 2004]), as is the testimony of one of defendant's unit owners confirming the accuracy of a document indicating the protrusion of his air conditioner.

The orders relied upon by defendant as law of the case were not binding on the motion court in deciding the instant motion for summary judgment because of the parties' different evidentiary burdens on the motions that those orders decided (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467 [1st Dept 1987]). Moreover, the September 6, 2006 order did not actually decide the relevant issue (see Ferolito v Vultaggio, 115 AD3d 541 [1st Dept 2014]; NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427-428 [1st Dept 2011]). In any event, this Court is not bound by law of the case as represented by the trial level rulings defendant relied upon (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]).

Contrary to defendant's contention, dismissal, by the previously assigned Justice, of its adverse possession counterclaim and affirmative defense on the ground that it could not actually posses plaintiff's air space does not preclude plaintiff's claim for interference with its rights (see generally Ain v Glazer, 257 AD2d 422, 423 [1st Dept 1999]).

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