| J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey |
| 2007 NY Slip Op 09363 [45 AD3d 809] |
| November 27, 2007 |
| Appellate Division, Second Department |
| J-Mar Service Center, Inc., et al., Appellants, v Mahoney,Connor & Hussey et al., Defendants, and Donal M. Mahoney et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Peter D. Rigelhaupt ofcounsel), for respondents Donal M. Mahoney and Brian M. Hussey. McManus, Collura & Richter, P.C., New York, N.Y. (Nicholas P. Chrysanthem of counsel),for respondent Peter T. Connor. Charles D. Hellman, New York, N.Y., for respondent Dennis Connor.
In an action to recover damages for breach of contract and legal malpractice, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County(Alpert, J.), entered April 19, 2006, as granted the separate motions of the defendants Donal M.Mahoney and Brian M. Hussey, Peter T. Connor, and Dennis Connor to dismiss the cause ofaction to recover damages for legal malpractice insofar as asserted against them on the ground ofcollateral estoppel.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents appearing separately and filing separate briefs, and the separatemotions of the defendants Donal M. Mahoney and Brian M. Hussey, Peter T. Connor, andDennis Connor to dismiss the cause of action to recover damages for legal malpractice insofar as[*2]asserted against them are denied.
An appellate court's resolution of an issue on a prior appeal constitutes the law of the caseand is binding on the Supreme Court, as well as on the appellate court (see Quinn v Hillside Dev. Corp., 21AD3d 406, 407 [2005]; Matter ofOak St. Mgt., Inc., 20 AD3d 571 [2005]; Johnson v Incorporated Vil. ofFreeport, 288 AD2d 269 [2001]; Mooney v PCM Dev. Co., 253 AD2d 454, 455[1998]; Shroid Constr. v Dattoma, 250 AD2d 590 [1998]). "[T]he 'law of the case'operates to foreclose re-examination of [the] question absent a showing of subsequent evidenceor change of law" (Matter of Yeampierre v Gutman, 57 AD2d 898, 899 [1977]; seeLipovsky v Lipovsky, 271 AD2d 658, 658 [2000]; McIvor v Di Benedetto, 121AD2d 519, 522 [1986]).
On a prior appeal, upon reviewing the denial of various motions by the respondents todismiss this action to recover damages for legal malpractice, this Court found that they had failedto meet their burden of demonstrating "that the plaintiffs were unable to prove at least one of theessential elements of a cause of action to recover damages for legal malpractice" (J-Mar Serv. Ctr., Inc. v Mahoney, Connor& Hussey, 14 AD3d 482, 483 [2005]). We further found, inter alia, that the respondents'remaining contentions, which included their argument that the cause of action to recoverdamages for legal malpractice was barred by the doctrine of collateral estoppel, were withoutmerit. This Court's determination of these issues on the prior appeal constituted the law of thecase, which was binding upon the Supreme Court, "and is binding upon this court in the absenceof a showing of extraordinary circumstances" (Vanguard Tours v Town of Yorktown,102 AD2d 868 [1984]; see Pekich vJames E. Lawrence, Inc., 38 AD3d 632, 633 [2007]).
Contrary to the determination of the Supreme Court, Rosenkrantz v Harriet M. Steinberg, P.C. (13 AD3d 88 [2004]) isinapplicable to this case because neither the trial court, nor this Court on appeal, ever reached themerits of the underlying action (seeJ-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 14 AD3d 482, 483 [2005]).
Additionally, contrary to the contention of Mahoney and Hussey, they did not submit newevidence that would warrant a departure from our earlier determination that the respondents hadfailed "to demonstrate that the plaintiffs were unable to prove at least one of the essentialelements of a cause of action to recover damages for legal malpractice" (J-Mar Serv. Ctr., Inc. v Mahoney, Connor& Hussey, 14 AD3d 482, 483 [2005]). Schmidt, J.P., Rivera, Santucci and Balkin, JJ.,concur.