Opinion
510 403550/10.
03-15-2016
JACOBY & MEYERS, LLP, et al., Plaintiffs–Respondents, v. Michael FLOMENHAFT, et al., Defendants–Appellants.
The Flomenhaft Law Firm, PLLC, New York (Stephen D. Chakwin Jr. of counsel), for appellants. Hinshaw & Culbertson LLP, New York (Katie M. Lachter of counsel), for respondents.
The Flomenhaft Law Firm, PLLC, New York (Stephen D. Chakwin Jr. of counsel), for appellants.
Hinshaw & Culbertson LLP, New York (Katie M. Lachter of counsel), for respondents.
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 A.D.3d 948, 942 N.Y.S.2d 173 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 A.D.3d 130, 135, 961 N.Y.S.2d 152 1st Dept 2013; see also People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232 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 A.D.3d 526, 527, 968 N.Y.S.2d 32 1st Dept.2013 ), and Supreme Court correctly denied the motion as barred by the law of the case (see 106 A.D.3d at 135, 961 N.Y.S.2d 152).
On December 21, 2010, the case was transferred from Orange County.
We have considered defendants' remaining arguments and find them unavailing.
TOM, J.P., ACOSTA, RENWICK, MOSKOWITZ, JJ., concur.