Opinion
2017–04085 Index No. 101146/13
06-05-2019
Renato J. PASCUAL, et al., Appellants, v. RUSTIC WOODS HOMEOWNERS ASSOCIATION, INC., et al., Respondents, et al., Defendant.
Renato J. Pascual, Staten Island, NY, appellant pro se, and Aida A. Pascual, Staten Island, NY, appellant pro se (one brief filed). Romer Debbas, LLP, New York, N.Y. (Emil A. Samman and Leanna Barbieri of counsel), for respondent Rustic Woods Homeowners Association, Inc. Boyd Richards Parker Colonnelli, P.L., New York, N.Y. (Bryan J. Massola and Russell J. Edwards of counsel), for respondent Kathleen Fogarty, President, Rustic Woods Condominium I.
Renato J. Pascual, Staten Island, NY, appellant pro se, and Aida A. Pascual, Staten Island, NY, appellant pro se (one brief filed).
Romer Debbas, LLP, New York, N.Y. (Emil A. Samman and Leanna Barbieri of counsel), for respondent Rustic Woods Homeowners Association, Inc.
Boyd Richards Parker Colonnelli, P.L., New York, N.Y. (Bryan J. Massola and Russell J. Edwards of counsel), for respondent Kathleen Fogarty, President, Rustic Woods Condominium I.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action, inter alia, for permanent injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated February 21, 2017. The order, insofar as appealed from, denied the plaintiffs' motion for summary judgment on the complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiffs own a unit at Rustic Woods Condominium I (hereinafter the Condominium), and are members of Rustic Woods Homeowners Association, Inc. (hereinafter the Homeowners Association). In July 2013, the plaintiffs commenced this action against the Homeowners Association, Kathleen Fogarty, as president of the Condominium, and Cooper Square Realty, Inc., the Condominium's managing agent, alleging that two special assessments were improperly included on their bills for common charges. Immediately after issue was joined, the plaintiffs moved for summary judgment on the complaint. In an order dated December 17, 2013, the Supreme Court, inter alia, denied the plaintiffs' motion. By decision and order dated December 23, 2015, this Court, inter alia, affirmed the order insofar as reviewed (see Pascual v Rustic Woods Homeowners Assn., Inc., 134 A.D.3d 1003, 24 N.Y.S.3d 81 ).
In October 2016, before any discovery was conducted in the action, the plaintiffs again moved for summary judgment on the complaint setting forth the same arguments and relying on the same evidence as on their previous motion for summary judgment. In an order dated February 21, 2017, the Supreme Court, inter alia, denied the motion on the ground that it was barred by the law of the case doctrine. The plaintiffs appeal.
" ‘An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, ... [and] operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or [a] change of law’ " ( Matter of Norton v. Town of Islip, 167 A.D.3d 624, 626, 90 N.Y.S.3d 59, quoting J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 [citations and internal quotation marks omitted]; see U.S. Bank, N.A. v. Morrison, 160 A.D.3d 679, 680, 74 N.Y.S.3d 296 ; Congel v. Malfitano, 141 A.D.3d 64, 70, 32 N.Y.S.3d 264, mod on other grounds 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341 ; Madison Acquisition Group, LLC v 7614 Fourth Real Estate Dev., LLC, 134 A.D.3d 683, 684, 20 N.Y.S.3d 418 ; Matter of 24 Franklin Ave. R.E. Corp. v Heaship, 101 A.D.3d 1034, 1036, 956 N.Y.S.2d 186 ). On the prior appeal based on the same arguments and evidence, this Court considered, and rejected, the plaintiffs' contention that they established their entitlement to judgment as a matter of law. The plaintiffs have not demonstrated new factual circumstances, additional relevant evidence, or a change in the law which would warrant reconsideration of this issue (see Matter of Norton v. Town of Islip, 167 A.D.3d at 626, 90 N.Y.S.3d 59 ; Breidbart v. Wiesenthal, 136 A.D.3d 851, 852, 24 N.Y.S.3d 922 ; Czernicki v. Lawniczak, 103 A.D.3d 769, 770, 962 N.Y.S.2d 166 ; York v. York, 98 A.D.3d 1042, 1043, 950 N.Y.S.2d 592 ).
Accordingly, we agree with the Supreme Court's determination to deny the plaintiffs' motion.
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.