| Romagnolo v Pandolfini |
| 2010 NY Slip Op 06237 [75 AD3d 632] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Joseph Romagnolo, Respondent, et al., Plaintiff, v JasonPandolfini et al., Respondents, and U.S. Bank Portfolio Services, Appellant, et al.,Defendant. |
—[*1] John Z. Marangos, Staten Island, N.Y., for plaintiff-respondent. Thaniel J. Beinert, Brooklyn, N.Y. (Marc A. Merolesi and Kelly C. Griffin of counsel), fordefendants-respondents.
In an action, inter alia, for a judgment declaring that certain obligations of the plaintiffJoseph Romagnolo pursuant to a guaranty and suretyship agreement dated November 19, 2001,are "null and void and of no force and effect," the defendant U.S. Bank Portfolio Servicesappeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May 11,2009, which granted the motion of the plaintiff Joseph Romagnolo for summary judgmentdismissing its counterclaims insofar as asserted against that plaintiff, granted the separate motionof the defendants Jason Pandolfini and Ron Pandolfini, Jr., for summary judgment dismissing itscross claims insofar as asserted against those defendants, and denied its cross motion forsummary judgment on its counterclaims insofar as asserted against the plaintiff JosephRomagnolo and its cross claims insofar as asserted against the defendants Jason Pandolfini andRon Pandolfini, Jr.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
On or about November 19, 2001, the plaintiff South Shore Imaging, Inc. (hereinafter SouthShore), entered into a master equipment lease with the defendant DVI Financial Services, Inc.(hereinafter DVI). Pursuant thereto, South Shore agreed to pay for the subject equipmentpursuant to an equipment schedule dated November 29, 2001 (hereinafter the first equipmentschedule), in the amount of $929,806.80. The plaintiff Joseph Romagnolo, the defendant JasonPandolfini, and the defendant Ron Pandolfini, Jr. (hereinafter collectively the guarantors),separately executed "Guaranty and Suretyship" agreements, all dated November 19, 2001,wherein they separately guaranteed South Shore's performance under the first equipmentschedule.[*2]
On or about March 20, 2003, South Shore entered into asecond equipment schedule (hereinafter the second equipment schedule) in connection with themaster equipment lease by which South Shore agreed to pay the increased amount of$1,097,367.60 for the subject equipment under lease.
After South Shore defaulted on its obligations under the second equipment schedule, SouthShore and Romagnolo commenced the instant action against Jason Pandolfini, Ron Pandolfini,Jr., DVI, and U.S. Bank Portfolio Services (hereinafter USB), DVI's successor in interest. In itsanswer, USB asserted counterclaims against South Shore and Romagnolo to recover the sum of$902,065.98, which allegedly constituted the balance remaining under the master equipmentlease and to enforce the guaranty and suretyship agreement which Romagnolo executed, as wellas cross claims against Jason Pandolfini and Ron Pandolfini, Jr., to recover under the guarantyand suretyship agreements executed by them.
USB moved for summary judgment on its counterclaims and cross claims. In an order datedFebruary 1, 2008, the Supreme Court granted that branch of USB's motion which was forsummary judgment on its counterclaims insofar as asserted against South Shore and denied theremaining branches thereof insofar as asserted against the guarantors. In relevant part, theSupreme Court found that the second equipment schedule satisfied South Shore's obligationsunder the first equipment schedule and constituted a material alteration of the underlyingobligation which the guarantors assumed under the guaranty and suretyship agreements, andtherefore required the execution of new guaranties, which were never obtained. USB did notappeal from the order dated February 1, 2008. Instead, USB moved for leave to renew andreargue the denial of those branches of its motion which were for summary judgment on itscounterclaims and cross claims against the guarantors. In a subsequent order dated May 20,2008, the Supreme Court denied USB's motion for leave to renew and reargue, and no appealwas taken by USB.
Romagnolo then moved for summary judgment dismissing the counterclaims insofar asasserted against him. Jason Pandolfini and Ron Pandolfini, Jr., also moved for summaryjudgment dismissing the cross claims insofar as asserted against them. USB cross-moved forsummary judgment, arguing that newly-discovered evidence demonstrated its entitlement tosummary judgment on its counterclaims against Romagnolo and its cross claims against JasonPandolfini and Ron Pandolfini, Jr. The Supreme Court granted the guarantors' motions anddenied USB's cross motion. We affirm.
The Supreme Court properly denied USB's cross motion for summary judgment on theground that it was barred by the doctrine of "law of the case" (see Gualano v Abington Sq. CondominiumAssn., 69 AD3d 793, 795 [2010]; Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 61 AD3d 712,713 [2009]; Hampton Val. Farms, Inc. vFlower & Medalie, 40 AD3d 699, 701 [2007]). It is undisputed that USB previouslymoved for the same relief, which the Supreme Court denied on the merits in the order datedFebruary 1, 2008. Although this Court is not bound by the law of the case doctrine and mayconsider USB's cross motion on the merits (see Mosher-Simons v County of Allegany,99 NY2d 214, 218-219 [2002]; Lehmanv North Greenwich Landscaping, LLC, 65 AD3d 1293, 1295 [2009]; Debcon Fin.Servs., Inc. v 83-17 Broadway Corp., 61 AD3d at 713; Hampton Val. Farms, Inc. vFlower & Medalie, 40 AD3d at 701), USB's contentions are without merit (see Mackler v Burke, 2 AD3d 505[2003]; Varick Drywall v Aniero Concrete Co., 237 AD2d 348, 349 [1997]).
USB's remaining contentions are either without merit or not properly before this Court.Prudenti, P.J., Rivera, Santucci and Miller, JJ., concur.