22 NYCRR 202.48

Solomon v Burden, 2018 NY Slip Op 07480 [2d Dept. 2018]

The plaintiffs made a second motion for an order of reference. The Supreme Court denied this motion without prejudice, finding that the plaintiffs abandoned their motion for an order of reference since they failed to submit the order of reference within 60 days after the signing and filing of the order directing submission, without showing good cause for their failure, in violation of 22 NYCRR 202.48(a). The plaintiffs then moved, inter alia, in effect, to extend the time to submit an order of reference, and for an order of reference. In the order appealed from, the court granted those branches of the plaintiffs’ motion, excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order.

” It is within the sound discretion of the court to accept a belated order or judgment for settlement'” (Curanovic v Cordone, 134 AD3d 978, 979, quoting Russo v Russo, 289 AD2d 467, 468; see Dime Sav. Bank of N.Y. v Anzel, 232 AD2d 446). “Moreover, a court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources'” (Curanovic v Cordone, 134 AD3d at 979, quoting Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394; see Zaretsky v Ok Hui Kim, 17 AD3d 455, 456; Matter of Argento v New York State Div. of Hous. & Community Renewal, 269 AD2d 443, 444; Crawford v Simmons, 226 AD2d 667).

Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.

The Supreme Court also did not violate the law of the case doctrine in excusing the plaintiffs’ failure to submit some of the supporting documents the court had directed them to provide in its earlier order. Generally, a plaintiff in a foreclosure action who is awarded summary judgment on the complaint is entitled to an order of reference appointing a referee (see e.g. Citibank, N.A. v Gentile, 156 AD3d 859). Consequently, the court’s original direction, made after the plaintiffs had already been awarded summary judgment, that supporting documents be submitted along with an order of reference was a discretionary ruling to which the law of the case doctrine does not apply (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511; Latture v Smith, 304 AD2d 534; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765).

 

Law of the case

Pentacon, LLC v 422 Knickerbocker, LLC, 2018 NY Slip Op 06758 [2d Dept. 2018]

Contrary to the Supreme Court’s conclusion, its prior denial of the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint did not, under the law of the case doctrine, preclude review of the defendants’ current motion for summary judgment (see Borawski v Abulafia[*2]140 AD3d 817, 817-818; State of New York v Barclays Bank of N.Y., 151 AD2d 19, 20-21). In any event, this Court is not bound by the doctrine of law of the case (see Precision Window Sys., Inc. v EMB Contr. Corp., 149 AD3d 883, 884; Ramanathan v Aharon, 109 AD3d 529, 531).

Lee v Allen, 2018 NY Slip Op 06890 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in granting the plaintiff’s motion for leave to amend the complaint and bill of particulars to add a demand for punitive damages, as there was no prejudice or surprise to the defendants and the proposed amendment was not palpably insufficient or devoid of merit (see CPLR 3025[b]; Postiglione v Castro, 119 AD3d 920, 922). Although the plaintiff unsuccessfully moved for the same relief in a prior motion, “[t]he doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination” (Hothan v Mercy Med. Ctr., 105 AD3d 905, 905).

Independent Chem. Corp. v Puthanpurayil, 2018 NY Slip Op 07193 [1st Dept. 2018]

Nor does the doctrine of law of the case compel a different conclusion (see People v Cummings, 31 NY3d 204, 208-209 [2018] [no absolute bar to successor justice seeking to rectify predecessor’s errors]; Foley v Roche, 86 AD2d 887, 887 [2d Dept 1982] [“plain” error may warrant departure from doctrine], lv denied 56 NY2d 507 [1982]; see also 1 Carmody-Wait 2d § 2:367 [law of case rule is “discretionary”]). In any event, the doctrine has no binding force on appeal (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335 [1st Dept 2009], lv denied 12 NY3d 713 [2009]).

Law of the case

J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 2018 NY Slip Op 06146 [1st Dept, 2018]

However, application of the doctrine of the "law of the case" is not warranted under the particular circumstances before us.

The law of the case is applicable to "legal determinations that were necessarily resolved on the merits in a prior decision" (Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2d Dept 2006]). On the prior appeal, the Court of Appeals stated that "the Insurers do not earnestly dispute that the claims fall within the policy's definition of Loss" (21 NY3d at 333), but did not rely on the policy language in denying defendants' motions. Instead it focused on the public policy issue. Furthermore, the doctrine does not apply where a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to CPLR 3212(c)(see Alvarado v City of New York, 150 AD3d 500, 500 [1st Dept 2017]; Rosen v Mosby, 148 AD3d 1228, 1233 [3d Dept 2017], lv dismissed 30 NY3d 1037 [2017]; 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]).

Even if the Court of Appeals' prior determination is viewed as addressing the contractual issue, "while the law of the case doctrine is intended to foster orderly convenience' . . ., 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'" (Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009]; see also Foley v Roche, 86 AD2d 887, 887 [1982], lv denied 56 NY2d 507 [1982] [holding that where the basis for a prior order had since been overruled by the Supreme Court of the United States and by the Court of Appeals, the law of the case doctrine can be ignored even though the prior order was from a higher court]). Here, the United States Supreme Court's decision in Kokesh, characterizing SEC disgorgement as a penalty, represents such a change of law.

Law of the case

IGS Realty Co., L.P. v Brady,  2018 NY Slip Op 04086 [1st Dept. 2018]

Pro se defendant's arguments on this appeal, previously raised and rejected by this Court and supported by no new evidence or change of law, are barred by law of the case (see Delgado v City of New York, 144 AD3d 46, 51 [1st Dept 2016]; Carmona v Mathisson, 92 AD3d 492, 492-493 [1st Dept 2012]).

Hudson City Sav. Bank v 59 Sands Point, LLC, 2018 NY Slip Op 03965 [2d Dept. 2018]

In opposition, both HCSB and the Strausman defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). HCSB contends that summary judgment should have been denied as premature because additional discovery was warranted, inter alia, regarding the issue of fraud in the execution of the Frankel mortgages. However, on a prior appeal, this Court considered and rejected HCSB's contention that the requested disclosure was material and necessary to its prosecution of this action (see Hudson City Sav. Bank v 59 Sands Point, LLC, 153 AD3d at 613). Therefore, the doctrine of law of the case precludes reconsideration thereof (see Alleyne v Grant, 124 AD3d 569Matter of Fulmer v Buxenbaum, 109 AD3d 822, 823; Allison v Allison, 60 AD3d 711). Accordingly, the Supreme Court properly granted that branch of Frankel's motion which was for summary judgment dismissing HCSB's second cause of action.

Law of the case and things wholly unrelated

Today I will start with the no-fault.

Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50743(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011).

Since defendant raised no issue in the Civil Court or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the Civil Court's determination with respect thereto. With regard to defendant's contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits (see Meekins v Town of Riverhead, 20 AD3d 399 [2005]).

In our opinion, while defendant's proof did not establish as a matter of law that there was a lack of coverage (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Term, 2d & 11th Jud Dists 2008]), it was sufficient to raise a triable issue of fact with respect to the existence of coverage (see Hospital for Joint Diseases, 21 AD3d 348). Contrary to the finding of the Civil Court, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

JT pointed out the law of the case issue.  Compare law of the case stemming from Appellate DIvision decisions.  For those that are unawares, "The doctrine of law of the case requires a court to follow the determinations of a court of coordinate jurisdiction." Northbay Constr. Co., Inc. v Bauco Constr. Corp., 2009 NY Slip Op 05753 (App. Div., 2nd, 2009).  They key phrase here is "coordinate jurisdiction."

Moving on.

One of the best and most moving posts I've read can be found here.  It's easy to support long jail sentences for any crime, even the non-violent sort, but when you are up close with the effects, so close that you can see them in the eyes of a child, things can change. 

The Appellate Record has me rethinking fonts. I learned a little something about regards.  There are twenty novels you can read in one sitting, who knew.  I read five or six of them and they all took more than one sitting.  In anyone is interested in learing about how legal writing has changed in the past thirty years, go here.  And here is a little ditty or writer burnout.

In paper releated news, I've become a fan of the action pad, which I'm pretty sure I mentioned before. Now Levenger is offering it for its circa books.  They also have Rhoida paper too. I might just pick one up.  Which leads me to another, point, why doesn't anyone ever send me free stuff.  I love free stuff.

 

 

Oral Decision, Not Reduced to Writing, Does Not Get Res Judicata Effect (last case)

Res Judicata
Collateral Estoppel
Law of the Case

Specialized Indus. Servs. Corp. v Carter, 2009 NY Slip Op 09018 (App. Div., 2nd, 2009)

In the underlying action, judgment was entered against the plaintiff upon its default in answering or appearing. The plaintiff obtained an order vacating the default judgment, which was ultimately reversed by this Court (see Dave Sandel, Inc. v Specialized Indus. Servs. Corp., 35 AD3d 790). Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the default judgment (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427; Retina Assoc. of Long Is. v Rosberger, 299 AD2d 533; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 87; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215). Under an exception to that rule, a separate lawsuit may be brought where the [*2]alleged perjury or fraud in the underlying action was "merely a means to the accomplishment of a larger fraudulent scheme" (Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217) which was "greater in scope than the issues determined in the prior proceeding" (Retina Assoc. of Long Is. v Rosberger, 299 AD2d at 533 [internal quotation marks omitted]). The plaintiff here, in its amended verified complaint and supplemental affidavits, has sufficiently alleged a larger fraudulent scheme to fit within the exception to the rule against collateral attack (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d at 80, 87-88; cf. North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d at 428).

Contrary to the defendant's contention, the first cause of action in the amended verified complaint is not barred by the doctrine of res judicata since the Judiciary Law cause of action did not arise out of the factual transaction which was the subject matter of that action (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; Mahler v Campagna, 60 AD3d at 1011; Lazides v P & G Enters., 58 AD3d 607, 609; Triboro Fastener & Chem. Prods. Corp. v Lee, 236 AD2d 603, 603-604). Nor is the first cause of action precluded by principles of collateral estoppel in that the claim was not litigated in the underlying action and much of the evidence upon which the plaintiff relies was discovered subsequent to entry of the default judgment in the underlying action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Izko Sportswear Co., Inc. v Flaum, 25 AD3d at 537; Chambers v City of New York, 309 AD2d 81, 85).

Man Choi Chiu v Chiu, 2009 NY Slip Op 08792, (App. Div., 2nd, 2009)

On a prior appeal in this action, this Court affirmed, inter alia, the Supreme Court's determination to award an attorney's fee to the plaintiffs (see Man Choi Chiu v Chiu, 38 AD3d 619). Thus, the doctrine of the law of the case (see People v Evans, 94 NY2d 499, 502) precludes consideration of whether the plaintiffs were properly awarded an attorney's fee (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314, affd 10 NY3d 846; Toyos v City of New York, 54 AD3d 628; Combier v Anderson, 34 AD3d 333).

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350). Here, the defendants appealed from an order of the Supreme Court dated September 7, 2007, which, inter alia, denied their motion to cancel the hearing on the issue of the amount of attorney's fees to be awarded. That appeal was dismissed by decision and order on motion of this Court dated June 18, 2008, for failure to prosecute. We decline to exercise our discretion to determine the merits of that appeal on the instant appeal from the judgment, as amended (see Bray v Cox, 38 NY2d [*2]350; Blue Chip Mtge. Corp. v Strumpf, 50 AD3d 936, 937).

Jespersen v Li Sheng Liang, 2009 NY Slip Op 09000 (App. Div., 2nd, 2009)

As a general rule, a dismissal "with prejudice" signifies that the court intended dismiss the action "on the merits" (Yonkers Contr. v Port Auth. Trans Hudson Corp., 93 NY2d 375, 380). However, an oral decision which has never been reduced to a written order or judgment is not entitled to res judicata effect and thus is ineffective as a bar to subsequent proceedings (see Towne v Asadourian, 277 AD2d 800; Begelman v Begelman, 170 AD2d 562; see also 73 NY Jur 2d, Judgments §§ 354, 436, 437). Moreover, it is clear from the hearing transcript, as well as from the order appealed from, that the Supreme Court did not intend its dismissal of the first action to be on the merits. In addition, while a "duplicate" action is subject to dismissal pursuant to CPLR 3211(a)(4), there was no procedural bar to the plaintiff commencing the second action before the first action had been dismissed.

The bold is mine.

22 NYCRR § 208.14(c); CPLR R. 3404; an interesting (but wrong) theory re: law of the case

Law of the case

22 NYCRR § 208.14 Calendar default; restoration; dismissal

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

CPLR R. 3404 Dismissal of abandoned cases

Bowman v Beach Concerts, Inc., 2009 NY Slip Op 07747 (App. Div., 1st, 2009)

As plaintiff concedes, the showing of merit required on a motion to restore is less than that required to defend a motion for summary judgment (see Kaufman v Bauer, 36 AD3d 481, 482 [2007]). Indeed, this Court has previously held that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants (see Gamiel v Curtis & Reiss-Curtis, P.C., 60 AD3d 473, 474 [2009], lv dismissed __ NY3d __ [2009], 2009 NY LEXIS 3484; see also Embraer Fin. Ltd. v Servicios Aereos Profesionales, S.A., 42 AD3d 380, 381 [2007]). Thus, plaintiff's argument that this Court's prior order was "law of the case" precluding summary judgment in respondents' favor, or an "implicit recognition" of the merits of his claims, is without merit.

Deltejo v St. Nicholas Venture Inc., 2009 NY Slip Op 07689 (App. Div., 1st, 2009)\

Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701[c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A & J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants' seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants' remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]).

.

Res Judicata, Collateral Estoppel, and Law of the Case

Res Judicata

Collateral Estoppel

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
reverse.

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
res judicata.

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.

Collateral Estoppel & Law of the Case & CPLR § 3215(c)

Collateral Estoppel

Law of the Case

CPLR § 3215(c) Failure to take a default within a year

New York Cent. Mut. Fire Ins. Co. v Barry, 2009 NY Slip Op 05096 (App. Div., 2nd, 2009)

The facts of this case are set forth in prior appeals to this Court relating to this matter (see Barry v Hildreth, 9 AD3d 341; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602).

Contrary to the defendant's contention, the plaintiff
established its entitlement to judgment as a matter of law. The
plaintiff's claim for equitable subrogation was not barred by the
general release executed by the plaintiff's insured (see Fasso v Doerr, 12 NY3d 80, 88; Aetna Cas. & Sur. Co. v Bekins Van Lines Co., 67 NY2d 901, 902; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Group Health, Inc. v Mid-Hudson Cablevision, Inc., 58 AD3d 1029; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086; Lesnick & Mazarin v Cutler, 255 AD2d 367; Silinsky v State-Wide Ins. Co.,
30 AD2d 1, 3). Further, the plaintiff's claim was not barred by
collateral estoppel. The plaintiff's insured's apparent abandonment,
pursuant to CPLR 3215( c), of a counterclaim against the defendant for
contribution cannot be characterized as an adjudication on the merits
(see Sanders v Marino Falcone Brick Contr., 133 AD2d 342), precluding further litigation (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464; see Peterson v Troy, 96 AD2d 856). In opposition, the defendant failed to raise a triable issue of fact.

Northbay Constr. Co., Inc. v Bauco Constr. Corp., 2009 NY Slip Op 05753 (App. Div., 2nd, 2009)

On a prior appeal by the defendants in both actions (hereinafter the defendants) (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737),
this Court reversed an interlocutory judgment in favor of the
plaintiffs in both actions (hereinafter the plaintiffs) directing an
accounting and imposing a constructive trust, and remitted the matter
to the Supreme Court, Westchester County, for a new trial, with costs
to abide the event. In response to this determination, the defendants
moved by order to show cause for summary judgment based, inter alia,
upon the decision and order of this Court and arguments that the
plaintiffs failed to submit sufficient evidence at the trial. Prior to
the commencement of the new trial, the plaintiffs cross-moved for
summary judgment, contending that the testimony of the defendant
Dominick Bauco at the first trial established their entitlement to
judgment as a matter of law.
[*2]

The Supreme Court, in the
order appealed from, awarded the plaintiffs partial summary judgment in
the sum of $27,345.50, based upon a concession by the defendants, but
otherwise denied the motion and cross motion on the ground, inter alia,
that the decision of this Court in Northbay Constr. Co., Inc. v Bauco Constr. Corp. (38 AD3d 737), constituted law of the case.

The doctrine of law of the case requires a court to follow the determinations of a court of coordinate jurisdiction (see Mosher-Simons v County of Alleghany, 99
NY2d 214, 219). Therefore this Court is not bound by prior orders of
the Supreme Court in this matter. However, this Court is bound by our
own prior decisions and orders in this case (see Aames Funding Corp. v Houston, 57 AD3d 808). Further, the Supreme Court was bound to follow the remittitur of this Court (see Matter of Davis, 56 AD3d 553; Sweeney, Cohn, Stahl & Vaccaro v Kane, 33 AD3d 785),
which directed a new trial. Upon remittitur, the parties submitted no
new information which would warrant a different determination
(see Stone v Bridgehampton Race Circuit, 244 AD2d 403).

Accordingly, the order must be affirmed insofar as appealed and cross-appealed from, and the parties should proceed to trial (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737).

The bold is mine.

Law of the case

Yetnikoff v Mascardo, 2009 NY Slip Op 04712 (App. Div., 1st, 2009)

Plaintiff moved to vacate his default, arguing he had never received
the landlord defendants' motion for summary judgment on the
counterclaims. This motion was also denied on the ground that plaintiff
failed to provide a reasonable excuse for his default or evidence of a
meritorious defense.

With respect to the court's modification of its statement
concerning the landlord's position on rescission, the court correctly
found that counsel's statement that she had made a mistake in
communicating to the court was new evidence properly considered on the
motion. The law of the case is not implicated when a court alters its
own ruling (see Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335 [2009]).

Riskin v Pam Vic Enters., Ltd., 2009 NY Slip Op 04730 (App. Div., 1st, 2009)

The court did not err in re-referring the matter of calculating the
amount due to plaintiffs to a referee, inasmuch as no report was filed
after the previous referral. Plaintiffs' claim, that the previous grant
of partial summary judgment to them as against defendants in this
foreclosure action became the "law of the case" and extinguished the
claims of the proposed intervenor, Ted Singer, is unpreserved.
Were we
to review it, we would find that the law of the case doctrine does not
apply, since Singer was not a party to the earlier proceedings herein (see Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230, 231-232 [2004]).

The bold is mine.