Opinion
2017–00319 Index No. 704265/13
03-11-2020
NORTHERN BLVD CORONA, LLC, Plaintiff-Respondent, v. NORTHERN BLVD PROPERTY, LLC, et al., Appellants, et al., Defendants, et al., Non-Party Respondents, North Boulevard Property, LLC, et al., Intervenors-Respondents.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Stephen Holihan of counsel), for appellants. Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein, Michael J. Bonneville, and Tiffany L. Henry of counsel), for plaintiff-respondent. Loeb & Loeb, LLP, New York, N.Y. (David M. Satnick, Helen Gavaris, and Jonathan Hollis of counsel), for intervenors-respondents.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Stephen Holihan of counsel), for appellants.
Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein, Michael J. Bonneville, and Tiffany L. Henry of counsel), for plaintiff-respondent.
Loeb & Loeb, LLP, New York, N.Y. (David M. Satnick, Helen Gavaris, and Jonathan Hollis of counsel), for intervenors-respondents.
MARK C. DILLON, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff-respondent and the intervenors-respondents appearing separately and filing separate briefs.
The plaintiff commenced this action against the defendants Northern Blvd Property, LLC (hereinafter the Northern Blvd defendant), and Yourik Atakhanian (hereinafter together the defendants), among others, to foreclose a mortgage given by the Northern Blvd defendant to the plaintiff's predecessor in interest. The defendants defaulted in the action and a judgment of foreclosure and sale was issued. The property was thereafter sold at public auction and a referee's deed was issued to the intervenor North Boulevard Property, LLC (hereinafter the intervenor). On April 3, 2015, the defendants moved, inter alia, to vacate the referee's deed. The motion was denied in an order entered March 8, 2016, and this Court affirmed that order (see Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC , 157 A.D.3d 895, 69 N.Y.S.3d 866 ). The defendants thereafter made the instant motion, among other things, again to vacate the referee's deed, and to direct the intervenor to pay to the Northern Blvd defendant certain tax refunds issued by the New York City Department of Finance, which the defendants claimed the intervenor converted. In an order entered December 5, 2016, the Supreme Court denied the motion, and the defendants 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, as well as on the appellate court (see Matter of Norton v. Town of Islip , 167 A.D.3d 624, 626, 90 N.Y.S.3d 59 ; U.S. Bank, N.A. v. Morrison , 160 A.D.3d 679, 680, 74 N.Y.S.3d 296 ; J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey , 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 ). On the prior appeal, this Court considered and rejected the defendants' assertion that the referee's deed should be vacated in the exercise of the court's inherent equitable power, including on the basis of collusion during the foreclosure sale (see Northern Blvd Corona, LLC v. Northern Blvd Prop., LLC , 157 A.D.3d 895, 69 N.Y.S.3d 866 ). The defendants have not made a sufficient showing to warrant reexamination of that issue (see Matter of Norton v. Town of Islip , 167 A.D.3d at 626, 90 N.Y.S.3d 59 ). We agree with the Supreme Court's determination denying that branch of the defendants' motion which was to direct the intervenor to pay to the Northern Blvd defendant certain tax refunds on the basis of the intervenor's alleged conversion of those funds, as there was no pleading setting forth a cause of action alleging conversion (see PennyMac Corp. v. Bongiovanni , 170 A.D.3d 875, 877, 96 N.Y.S.3d 113 ).
DILLON, J.P., BALKIN, CONNOLLY and IANNACCI, JJ., concur.