Jacoby & Meyers, LLP v. Flomenhaft

137 A.D.3d 547, 26 N.Y.S.3d 848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2016
• Docket: 510 403550/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 14, 2014, which denied defendants’ motion for partial summary judgment dismissing the breach of contract claim in plaintiffs’ third amended complaint, unanimously affirmed, without costs.

As Supreme Court found and the parties do not dispute, the arguments defendants raised in support of their motion were raised in a prior summary judgment motion and were rejected by the prior motion court and the Second Department (see Jacoby & Meyers, LLP v Flomenhaft, 94 AD3d 948 [2d Dept 2012]). * On December 21, 2010, the case was transferred from Orange County. Given that defendants had a full and fair opportunity to litigate their arguments, the Second Department’s resolution of those arguments on the merits constitutes the law of the case and is binding on Supreme Court as well as this Court (Board of Mgrs. of the 25 Charles St. Condominium v Seligson, 106 AD3d 130, 135 [1st Dept 2013]; see also People v Evans, 94 NY2d 499, 502 [2000]). Defendants failed to present any new evidence on its second motion that was unavailable to them at the time the first motion was made, or that would warrant consideration of the second motion. Accordingly, there was no basis for the second motion (see Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526, 527 [1st Dept 2013]), and Supreme Court correctly denied the motion as barred by the law of the case (see 106 AD3d at 135).

We have considered defendants’ remaining arguments and find them unavailing.

Concur—Tom, J.P., Acosta, Renwick and Moskowitz, JJ.

* On December 21, 2010, the case was transferred from Orange County.