Bernstein v. 1995 Associates

211 A.D.2d 560, 621 N.Y.S.2d 78

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1995
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Carol Huff, J.), entered September 30, 1993, which, inter alia, held that plaintiff Bernstein waived his jurisdictional defense, unanimously dismissed, with costs.

As Bernstein is not "aggrieved” by the subject order, he lacks standing to appeal and thus the appeal is dismissed (CPLR 5511; see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 473). We also note that the issue which Bernstein now raises—whether he has waived his jurisdictional defense—was argued by him on his prior appeal to this Court, in which we unanimously affirmed the Supreme Court’s order and judgment (198 AD2d 11, lv dismissed 83 NY2d 801). Hence, Bernstein is precluded from relitigating that issue by the doctrine of the law of the case (see, Matter of Parsons, 78 AD2d 876). Finally, it is clear that by affirmatively instituting the specific performance/declaratory judgment Supreme Court action in 1990, Bernstein submitted to the jurisdiction of the court (see, Biener v Hystron Fibers, 78 AD2d 162). Concur— Sullivan, J. P., Wallach, Kupferman and Ross, JJ.