Opinion
Motion No. 2018-00114 KC
12-27-2022
97-101 Realty, LLC, Respondent, v. Escarleth Sanchez, Appellant.
Unpublished Opinion
MOTION DECISION
THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ.
DECISION & ORDER ON MOTION
Motion by appellant to modify a decision and order of this court dated November 29, 2019, which determined an appeal from an order of the Civil Court of the City of New York, Kings County, entered December 6, 2017. Cross-motion by respondent to, inter alia, "renew" the same decision and order and "restore" the appeal to the calendar.
Upon the papers filed in support of the motion and cross-motion and the papers having been filed in opposition thereto, it is
ORDERED that the motion and cross-motion are denied.
Contrary to the conclusion of the Civil Court in its order dated November 2, 2020, it was not bound to follow this court's remittal to the extent that such remittal conflicted with the subsequently-decided Court of Appeals decision in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 N.Y.3d 332 [2020]).
The general rule is that a "trial court to which an action is remitted by [an] appellate court has no jurisdiction to review, even for apparent errors, matters decided by the higher court. With regard to such matters, the decision rendered on appeal binds the lower court as the law of the case" (see 5 NY Jur 2d Appellate Review § 833). However, "[t]he doctrine of law of the case may be ignored to allow a party the benefit of an intervening change in the law even though the court has passed on the same issue. Although a change in the law will not be applied to a case that has been finally resolved, a change in law generally will be applied to all cases still in the normal litigation process" (Vinciguerra v Jameson, 208 A.D.2d 1136, 1138 [1994] [citations omitted]; see also e.g. Foley v Roche, 86 A.D.2d 887, 887 [1982] ["The doctrine of law of the case is not an absolute mandate on the court, since it may be ignored in extraordinary circumstances vitiating its effectiveness as a rule fostering orderly convenience, such as a change in the law or a showing of new evidence affecting the prior determination"] [internal quotation marks and citations omitted]; Rudiger v Coleman, 228 NY 225, 233 [1920] ["In adapting the relief to the exigencies of new conditions, the Supreme Court was not attempting to overrule our judgment or review it. Such adaptation is not nullification, but enforcement"]).
As this proceeding has not been finally resolved, the Civil Court may apply the relevant change in the law, the language of this court's remittal notwithstanding. The change in the law at issue here does not mean that the Civil Court cannot not comply with this court's remittal to consider the merits of tenant's motion (which was initially denied as moot), including tenant's claim of fraud, under the appropriate legal standard.
We note that landlord has established no basis for the "entire appeal" to be placed before this Court again.