Morrison Cohen, LLP v Fink

Morrison Cohen, LLP v Fink 2012 NY Slip Op 01125 Decided on February 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
6802N 104100/09

[*1]Morrison Cohen, LLP, Plaintiff-Appellant-Respondent,

v

David Fink, Defendant-Respondent-Appellant.




Morrison Cohen LLP, New York (Jerome Tarnoff of counsel),
for appellant-respondent.
David Fink, Wainscott, respondent-appellant pro se.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 12, 2011, which modified an order, same court and Justice, entered on or about December 7, 2010, "to the extent that it . . . deemed that defendant has complied with the conditions of such order" (conditional vacatur order), and vacated a default judgment against defendant entered January 12, 2010, unanimously reversed, on the law, with costs, and the judgment reinstated.

Plaintiff is correct that the conditional vacatur order was based solely on CPLR 317 grounds. Thus, this Court's conclusion, in its February 2011 order (81 AD3d 467), that defendant failed to demonstrate a CPLR 317 claim for vacatur became law of the case, as "[a]n appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court
. . . and operates to foreclose reexamination of the question absent a showing of subsequent evidence or change of law" (Kenney v City of New York, 74 AD3d 630, 630-31 [2010][internal quotation marks and citations omitted]). Accordingly, Supreme Court's December 7, 2010 conditional vacatur order was nullified, and the subsequent Supreme Court order on April 8, 2011 and the order appealed from - effectively reinstating the December 2010 vacatur - contravened the law of the case.

Defendant's argument, that the order appealed from was also an exercise of the motion court's discretion based on CPLR 5015(a)(1) (excusable default) and the court's inherent authority (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]), is equally unavailing. Even if we assume that, in the order appealed from, the court held that vacatur was required based on CPLR 5015(a)(1), such holding would itself violate the law of the case, as, in its December 7, 2010 order, the court implicitly, if not explicitly, rejected defendant's CPLR [*2]5015 arguments based on lack of proper service, and that order was affirmed by this Court.

We have reviewed the parties' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK