Bennett v. Nardone

Appellate Division of the Supreme Court of New York

Bennett v. Nardone

298 A.D.2d 790, 748 N.Y.S.2d 708, 2002 N.Y. App. Div. LEXIS 10348

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 2002

StatusPublished

Cited by11 cases

This text of 298 A.D.2d 790 (Bennett v. Nardone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bennett v. Nardone, 298 A.D.2d 790, 748 N.Y.S.2d 708, 2002 N.Y. App. Div. LEXIS 10348 (N.Y. Ct. App. 2002).

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Opinion

Rose, J.

Appeal from an order of the Supreme Court (Kavanagh, J.), entered October 17, 2001 in Ulster County, which denied plaintiffs motion to, inter alia, vacate an order and judgment which, upon an inquest, awarded damages to defendant, and to vacate a default judgment against plaintiff.

The underlying facts of these consolidated actions are set forth in our prior decision (276 AD2d 854), wherein we affirmed Supreme Court’s denial of plaintiffs first motion to vacate the default judgment entered against her in May 1999. In February 2001, following an inquest, Supreme Court found that defendant had established his causes of action and granted defendant various relief, including a money judgment. However, Supreme Court also observed that plaintiff might have been able to assert one or more viable defenses if she were not in default, and permitted her to again move to vacate the earlier default judgment. Supreme Court ultimately denied this second motion, prompting plaintiffs current appeal.

We affirm. Where, as here, a party to an action has had a [791]*791full and fair opportunity to fully litigate an issue, this Court’s decision on that issue becomes the law of the case precluding further litigation (see White v Murphy, 290 AD2d 704, 705; Scofield v Trustees of Union Coll., 288 AD2d 807, 808; Bray v Gluck, 235 AD2d 72, 74, lv dismissed 91 NY2d 1002; Merrill v Robinson, 106 AD2d 818, 819, lv dismissed 64 NY2d 608). Nor are we persuaded by plaintiffs characterization of the motion as one to renew. Although plaintiff asserts on appeal that the merit of her defense to defendant’s claims was revealed by his admissions during the inquest, she failed to provide Supreme Court with any new facts or legal arguments warranting a different conclusion regarding either the willfulness of her original default or the merit of her defenses (see Kirchoff v International Harvester Co., 138 AD2d 820, 821; Matter of Banow v Simins, 53 AD2d 542, appeal dismissed 40 NY2d 989, cert denied sub nom. Leibowitz v Simins, 430 US 968).

Crew III, J.P., Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

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Rose, J.

Appeal from an order of the Supreme Court (Kavanagh, J.), entered October 17, 2001 in Ulster County, which denied plaintiffs motion to, inter alia, vacate an order and judgment which, upon an inquest, awarded damages to defendant, and to vacate a default judgment against plaintiff.

The underlying facts of these consolidated actions are set forth in our prior decision (276 AD2d 854), wherein we affirmed Supreme Court’s denial of plaintiffs first motion to vacate the default judgment entered against her in May 1999. In February 2001, following an inquest, Supreme Court found that defendant had established his causes of action and granted defendant various relief, including a money judgment. However, Supreme Court also observed that plaintiff might have been able to assert one or more viable defenses if she were not in default, and permitted her to again move to vacate the earlier default judgment. Supreme Court ultimately denied this second motion, prompting plaintiffs current appeal.

We affirm. Where, as here, a party to an action has had a [791]*791full and fair opportunity to fully litigate an issue, this Court’s decision on that issue becomes the law of the case precluding further litigation (see White v Murphy, 290 AD2d 704, 705; Scofield v Trustees of Union Coll., 288 AD2d 807, 808; Bray v Gluck, 235 AD2d 72, 74, lv dismissed 91 NY2d 1002; Merrill v Robinson, 106 AD2d 818, 819, lv dismissed 64 NY2d 608). Nor are we persuaded by plaintiffs characterization of the motion as one to renew. Although plaintiff asserts on appeal that the merit of her defense to defendant’s claims was revealed by his admissions during the inquest, she failed to provide Supreme Court with any new facts or legal arguments warranting a different conclusion regarding either the willfulness of her original default or the merit of her defenses (see Kirchoff v International Harvester Co., 138 AD2d 820, 821; Matter of Banow v Simins, 53 AD2d 542, appeal dismissed 40 NY2d 989, cert denied sub nom. Leibowitz v Simins, 430 US 968).

Crew III, J.P., Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

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298 A.D.2d 790, 748 N.Y.S.2d 708, 2002 N.Y. App. Div. LEXIS 10348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-nardone-nyappdiv-2002.

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