Cara Associates, L.L.C. v. Milstein

Appellate Division of the Supreme Court of New York

Cara Associates, L.L.C. v. Milstein

2017 NY Slip Op 2885, 149 A.D.3d 498, 52 N.Y.S.3d 97

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

DecidedApril 13, 2017

Docket3693 651726/15

StatusPublished

This text of 2017 NY Slip Op 2885 (Cara Associates, L.L.C. v. Milstein) 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.

Bluebook

Cara Associates, L.L.C. v. Milstein, 2017 NY Slip Op 2885, 149 A.D.3d 498, 52 N.Y.S.3d 97 (N.Y. Ct. App. 2017).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Jeffrey K. Oing, J.), entered May 6, 2016, which denied defendants’ motion to dismiss the complaint, granted plaintiffs’ application to convert defendants’ dismissal motion to one for summary judgment and to conform the pleadings to the proof, granted plaintiffs’ motion for summary judgment, and declared, inter alia, that plaintiffs had the authority to remove Howard P. Milstein from his partnership management position and appoint a new manager by majority vote, and that a majority vote of the partners had authorized Michael L. Nelson and Ivan G. Goodstein to assume management of the business of the partnerships, unanimously modified, on the law and the facts, to the extent of amending the judgment to strike the ref *499 erence to this Court’s April 12, 2016 order and to substitute a reference to this Court’s June 30, 2016 order in place thereof, and otherwise affirmed, without costs.

Entry of the order and judgment was a ministerial act, and the dispositive order underlying the judgment, entered October 13, 2015, was previously reviewed by this Court upon defendants’ appeal therefrom, and decided adversely to defendants (see 140 AD3d 657 [1st Dept 2016], lv dismissed 27 NY3d 1181 [2016]), rendering the instant appeal improper, as it is not taken from a nonfinal judgment or order (see CPLR 5501 [a] [1]; Miller v New York Univ., 104 AD3d 451 [1st Dept 2013]). The Court’s prior resolution of the issues raised on this appeal constitutes law of the case (see Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P., 82 AD3d 550 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and defendants’ time to seek reargument from the prior order of this Court has expired (see Rules of App Div, 1st Dept [22 NYCRR] § 600.14 [a]).

Concur — Friedman, J.P., Richter, Mazzarelli, Feinman and Gische, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Jeffrey K. Oing, J.), entered May 6, 2016, which denied defendants’ motion to dismiss the complaint, granted plaintiffs’ application to convert defendants’ dismissal motion to one for summary judgment and to conform the pleadings to the proof, granted plaintiffs’ motion for summary judgment, and declared, inter alia, that plaintiffs had the authority to remove Howard P. Milstein from his partnership management position and appoint a new manager by majority vote, and that a majority vote of the partners had authorized Michael L. Nelson and Ivan G. Goodstein to assume management of the business of the partnerships, unanimously modified, on the law and the facts, to the extent of amending the judgment to strike the ref *499 erence to this Court’s April 12, 2016 order and to substitute a reference to this Court’s June 30, 2016 order in place thereof, and otherwise affirmed, without costs.

Entry of the order and judgment was a ministerial act, and the dispositive order underlying the judgment, entered October 13, 2015, was previously reviewed by this Court upon defendants’ appeal therefrom, and decided adversely to defendants (see 140 AD3d 657 [1st Dept 2016], lv dismissed 27 NY3d 1181 [2016]), rendering the instant appeal improper, as it is not taken from a nonfinal judgment or order (see CPLR 5501 [a] [1]; Miller v New York Univ., 104 AD3d 451 [1st Dept 2013]). The Court’s prior resolution of the issues raised on this appeal constitutes law of the case (see Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P., 82 AD3d 550 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and defendants’ time to seek reargument from the prior order of this Court has expired (see Rules of App Div, 1st Dept [22 NYCRR] § 600.14 [a]).

Concur — Friedman, J.P., Richter, Mazzarelli, Feinman and Gische, JJ.

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Bluebook (online)

2017 NY Slip Op 2885, 149 A.D.3d 498, 52 N.Y.S.3d 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cara-associates-llc-v-milstein-nyappdiv-2017.

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