Atlas Feather Corp. v. Pine Top Insurance

122 A.D.2d 241, 505 N.Y.S.2d 436, 1986 N.Y. App. Div. LEXIS 59584

Opinion

— In an action to recover damages for property losses, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Scholnick, J.), dated January 22, 1985, as denied that branch of its cross motion which was for an order dismissing the plaintiff’s cause of action for attorney’s fees under Insurance Law former § 59-a.

Order reversed insofar as appealed from, with costs, and that branch of the defendant’s cross motion which was to strike the plaintiff’s cause of action for attorney’s fees granted.

By order dated June 17, 1983, Special Term (Rader, J.), determined that Insurance Law former § 59-a (3) (a) (now § 1213 [c] [1]) was inapplicable to this case by virtue of the applicability of Insurance Law § 59-a (5) (now § 1213 [e]). Insurance Law § 1213 (e) renders the entire section, including the provision regarding attorney’s fees (§ 1213 [d]), inapplicable. The plaintiff did not appeal from the aforesaid order.

Inasmuch as a decided issue within a case becomes binding not only on the parties but on all other Judges of coordinate jurisdiction (see, Spahn v Griffith, 101 AD2d 1011; Siegel, NY Prac § 448, at 593), Special Term erred in failing to dismiss the cause of action for attorney’s fees which was predicated on a section of the statute previously found to be inapplicable to the subject matter of the lawsuit.

While the law of the case doctrine does not preclude appellate review of the issue, the plaintiff has failed to convince us of the impropriety of Justice Rader’s order. Bracken, J. P., Brown, Weinstein and Spatt, JJ., concur.