Law of the case

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.

Law of the case

Kleinser v Astarita, 2009 NY Slip Op 03401 (App. Div., 1st, 2009)

Plaintiff pro se served an amended complaint without leave of the
court in which he named as additional defendants four partners of the
law firm that had represented him in the underlying action. Defendants
moved to dismiss the amended complaint on the ground that the newly
added partners had no connection with the underlying action or contact
with plaintiff. The motion court, after noting that the amended
complaint was improperly served without court leave, dismissed it as
against the newly added partners for failure to state a cause of action
as against them "in their individual capacity." Several months later,
plaintiff moved for leave to add the same four partners, submitting a
proposed second amended complaint that was the same as the first except
that it added an allegation that the four were partners of the firm at
the time of the alleged malpractice "and are each individually, jointly
and severally, liable for the acts and omissions of their partners."
The motion court characterized the claim against the proposed four new
defendants as "colorable," citing Partnership Law § 26, and
granted plaintiff leave to add them.

On appeal, defendants do not argue that the amended complaint
fails to state a cause of action as against the four newly added
defendants, but rather that the court, in permitting their joinder,
violated the law of the case doctrine, exceeded its authority by
exercising appellate jurisdiction to sua sponte vacate its own order,
and erroneously granted what was actually an untimely motion to
reargue. The law of the case doctrine, however, is not implicated
because the court did not alter a ruling by another court of coordinate
jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333
[2009]). "[E]very court retains continuing jurisdiction to reconsider
its [own] prior interlocutory orders during the pendency of the action"
(Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so "regardless of statutory time limits concerning motions to reargue" (id.).
Thus, even if plaintiff's motion for leave to add the four partners
were a belated motion to reargue the prior order dismissing the action
as against those partners for failure to state a cause of action, the
court had discretion to [*2]reconsider
its prior order, sua sponte, and correct it. Such discretion was
properly exercised here in view of plaintiff's pro se status.

The bold is mine.

State Farm Indem. Co. v Yong Hua Lian, 2009 NY Slip Op 50805(U) (App. Term, 2nd, 2009)

With respect to the remaining portion of the order, we note that,
contrary to the contention of defendant, the motion court did not
violate the doctrine of law of the case by allegedly overruling the
prior "so-ordered" stipulation and substituting its own order therefor.
The doctrine of law of the case is not applicable to prior discovery
orders (see e.g. Sullivan v Nigro, 48 AD3d 454 [2008]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A],
2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]). It
is also noted that this court, as an appellate court, is not bound by
the law of the case doctrine (see Latture v Smith, 304 AD2d 534 [2003]; see also Sunshine Care Corp.,19
Misc 3d 143[A], 2008 NY Slip Op 51101[U]). Accordingly, inasmuch as
defendant raised no other objection to the remaining portion of the
order, the order, insofar as reviewed, is affirmed.

The bold is mine.