| Young v Tseng |
| 2005 NY Slip Op 08974 |
| Decided on November 21, 2005 |
| Appellate Division, Second Department |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 21, 2005
ANITA R. FLORIO, J.P.
SONDRA MILLER
DANIEL F. LUCIANO
WILLIAM F. MASTRO, JJ.
2003-08166
v
Johnson Tseng, et al., appellants. (Action No. 1) (Index No. 12894/00)
L&Y Development LLC, plaintiff, Gina Young, respondent,
v
T.C. Food Import & Export Co., Inc., et al., appellants. (Action No. 2) (Index No. 13978/00)
Shenlaw.com Law Firm, LLP, Flushing, N.Y. (Jianming Shen of
counsel), for appellants.
Pearlman, Apat & Futterman, Kew Gardens, N.Y. (Martin M.
Seinfeld of counsel), for
respondents.
In two related actions, inter alia, for specific performance of a contract for the sale of real property, Johnson Tseng and T.C. Food Import & Export Co., Inc., the defendants in both actions, appeal from an order of the Supreme Court, Queens County (Dye, J.), dated May 22, 2003, which granted the motion of Gina Young, a plaintiff in both actions, and Century Electric and Building Supply, Inc., a plaintiff in Action No. 1, to vacate certain leases entered into by the defendants and denied their motion for a stay of and consolidation of the actions.
ORDERED that the order is affirmed, with costs.
Since the defendants could have raised their fraud argument on a prior appeal, they waived appellate review of that argument (see EIFS, Inc. v Morie Co., 298 AD2d 551; Duffy v Holt-Harris, 260 AD2d 595).[*2]
With the exception of their fraud argument, the defendants' remaining contentions are based upon matter dehors the record and, therefore, cannot be considered on appeal (see Echevarria v Pathmark Stores, 7 AD3d 750; Carhuff v Barnett's Bake Shop, 54 AD2d 969). In any event, they seek to raise again the very issues previously considered and decided against them on a prior appeal (see Young v Tseng, 300 AD2d 476). Reconsideration of those issues is barred by the doctrine of the law of the case (see Prato v Vigliotta, 277 AD2d 214; Yeampierre v Gutman, 57 AD2d 898).
FLORIO, J.P., S. MILLER, LUCIANO and MASTRO, JJ., concur.
2003-08166 DECISION & ORDER ON MOTION
Gina Young, et al., respondents,
v Johnson Tseng, et al., appellants.
(Action No. 1)
(Index No. 12894/00)
L&Y Development LLC, plaintiff, Gina Young, respondent,
v T.C. Food Import & Export Co., Inc., et al., appellants.
(Action No. 2)
(Index No. 13978/00)
Motion by the respondents on an appeal from an order of the Supreme Court, Queens County, dated May 22, 2003, inter alia, in effect, to strike the appellants' appendix and brief on the ground that they contain or refer to matter dehors the record. By decision and order on motion of this court dated August 19, 2004, those branches of the motion which were to strike the appellants' appendix and brief that were not granted to the extent that certain material was stricken from the brief and appendix were held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that those branches of the motion which are to strike the appellants' appendix and brief that were not granted to the extent that certain material was stricken are denied as academic in light of our determination of the appeal.
FLORIO, J.P., S. MILLER, LUCIANO and MASTRO, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court