Opinion
2014-01-21
Alexander GLIKLAD, Plaintiff–Respondent, v. Michael CHERNEY, Defendant–Appellant.
Friedman Kaplan Seiler & Adelman LLP, New York (Philippe Adler of counsel), and Frankfurt Kurnit Klein & Selz, P.C., New York (Brian E. Maas of counsel), for appellant. Winston & Strawn LLP, New York (W. Gordon Dobie of counsel), for respondent.
Friedman Kaplan Seiler & Adelman LLP, New York (Philippe Adler of counsel), and Frankfurt Kurnit Klein & Selz, P.C., New York (Brian E. Maas of counsel), for appellant. Winston & Strawn LLP, New York (W. Gordon Dobie of counsel), for respondent.
TOM, J.P., SAXE, MOSKOWITZ, GISCHE, and CLARK, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered February 3, 2012, which, inter alia, granted plaintiff's motion to compel the production of certain documents pursuant to CPLR 3124 and 3126, unanimously affirmed, with costs. Order, same court and Justice, entered July 19, 2012, which, inter alia, granted plaintiff's motion to strike defendant's first affirmative defense and first counterclaim seeking reformation of the promissory note to reflect plaintiff as the borrower, unanimously affirmed, with costs. Order, same court and Justice, entered March 25, 2013, which, inter alia, denied defendant's motion to renew plaintiff's motion to strike the first affirmative defense and first counterclaim, unanimously affirmed, with costs. Order, same court and Justice, entered August 20, 2013, which granted plaintiff's motion to strike defendant's ninth affirmative defense asserting a lack of consideration for the promissory note, unanimously affirmed, with costs. Order, same court and Justice, entered April 25, 2013, which denied defendant's motion for summary judgment based on lack of personal jurisdiction, and granted plaintiff's cross motion for summary judgment on the issue on personal jurisdiction, unanimously affirmed, with costs.
In a prior appeal, we held that the promissory note contained a clause selecting New York as the forum (97 A.D.3d 401, 402, 948 N.Y.S.2d 48 [1st Dept.2012] ). The motion court correctly found that this ruling constituted law of the case, since defendant had a full and fair opportunity to litigate the issue in the prior appeal. The expert witness evidence that defendant proffered following that appeal in support of his claim that the note contained only a choice of law clause does not constitute “subsequent” or “new” evidence that was previously unavailable for the purpose of avoiding the law of the case doctrine ( see Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept.2012]; Clark Constr. Corp. v. BLF Realty Holding Corp., 54 A.D.3d 604, 863 N.Y.S.2d 674 [1st Dept.2008] ). Given the binding ruling as to the forum selection clause, the court correctly found that defendant was barred from asserting a defense based on lack of jurisdiction.
The court's finding that defendant's conduct in connection with certain discovery requests was willful and contumacious is supported by the record; thus, the court properly imposed the discovery sanction of striking defendant's first counterclaim and his first and ninth affirmative defenses as a result of that conduct ( see Matter of Lawrence, 106 A.D.3d 607, 610, 965 N.Y.S.2d 495 [1st Dept.2013] ).