Young v. Tseng

Appellate Division of the Supreme Court of New York

Young v. Tseng

23 A.D.3d 552, 804 N.Y.S.2d 259

Appellate Division of the Supreme Court of the State of New York·Decided November 21, 2005·Published·Cited by 7 cases

Opinion

In two related actions, inter alia, for specific performance of a [553] contract for the sale of real property, Johnson Tseng and T.C. Food Import & Export Co., Inc., the defendants in both actions, appeal from an order of the Supreme Court, Queens County (Dye, J.), dated May 22, 2003, which granted the motion of Gina Young, a plaintiff in both actions, and Century Electric and Building Supply, Inc., a plaintiff in action No. 1, to vacate certain leases entered into by the defendants and denied their motion for a stay of and consolidation of the actions.

Ordered that the order is affirmed, with costs.

Since the defendants could have raised their fraud argument on a prior appeal, they waived appellate review of that argument (see EIFS, Inc. v Morie Co., 298 AD2d 551 [2002]; Duffy v Holt-Harris, 260 AD2d 595 [1999]).

With the exception of their fraud argument, the defendants’ remaining contentions are based upon matter dehors the record and, therefore, cannot be considered on appeal (see Echevarria v Pathmark Stores, Inc., 7 AD3d 750 [2004]; Carhuff v Barnett’s Bake Shop, 54 AD2d 969 [1976]). In any event, they seek to raise again the very issues previously considered and decided against them on a prior appeal (see Young v Tseng, 300 AD2d 476 [2002]). Reconsideration of those issues is barred by the doctrine of the law of the case (see Prato v Vigliotta, 277 AD2d 214 [2000]; Matter of Yeampierre v Gutman, 57 AD2d 898 [1977]). Florio, J.P., S. Miller, Luciano and Mastro, JJ., concur.

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In two related actions, inter alia, for specific performance of a [553] contract for the sale of real property, Johnson Tseng and T.C. Food Import & Export Co., Inc., the defendants in both actions, appeal from an order of the Supreme Court, Queens County (Dye, J.), dated May 22, 2003, which granted the motion of Gina Young, a plaintiff in both actions, and Century Electric and Building Supply, Inc., a plaintiff in action No. 1, to vacate certain leases entered into by the defendants and denied their motion for a stay of and consolidation of the actions.

Ordered that the order is affirmed, with costs.

Since the defendants could have raised their fraud argument on a prior appeal, they waived appellate review of that argument (see EIFS, Inc. v Morie Co., 298 AD2d 551 [2002]; Duffy v Holt-Harris, 260 AD2d 595 [1999]).

With the exception of their fraud argument, the defendants’ remaining contentions are based upon matter dehors the record and, therefore, cannot be considered on appeal (see Echevarria v Pathmark Stores, Inc., 7 AD3d 750 [2004]; Carhuff v Barnett’s Bake Shop, 54 AD2d 969 [1976]). In any event, they seek to raise again the very issues previously considered and decided against them on a prior appeal (see Young v Tseng, 300 AD2d 476 [2002]). Reconsideration of those issues is barred by the doctrine of the law of the case (see Prato v Vigliotta, 277 AD2d 214 [2000]; Matter of Yeampierre v Gutman, 57 AD2d 898 [1977]). Florio, J.P., S. Miller, Luciano and Mastro, JJ., concur.

Young v. Tseng, 23 A.D.3d 552, 804 N.Y.S.2d 259 (N.Y. Ct. App. 2005).

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