| Sealy v Clifton, LLC |
| 2013 NY Slip Op 03658 [106 AD3d 981] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Daryl Sealy, Respondent, v Clifton, LLC, et al.,Appellants. |
—[*1] Mark H. Stofsky, Brooklyn, N.Y., for respondent.
In an action, inter alia, to dissolve the defendant Clifton, LLC, and for an accounting,which was transferred from the Supreme Court, Kings County, to the Surrogate's Court,Kings County, to be heard in conjunction with a related turnover proceeding, thedefendants appeal from so much of an order of the Surrogate's Court, Kings County(Cutrona, A.S.), dated June 13, 2011, as granted those branches of the plaintiff's motionwhich were, in effect, for summary judgment determining that the defendant Clifton,LLC, is dissolved, and on the third cause of action in the amended complaint for anaccounting.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 1997, the plaintiff and Charles Alston (hereinafter Alston), formed the defendantClifton, LLC (hereinafter Clifton), a limited liability company, in which each individualheld a 50% interest. In 1999, two condominium units in Brooklyn (hereinafter theproperties) were purchased in the name of Clifton. After Alston passed away inDecember 2006, the plaintiff commenced an action for partition of the properties againstClifton and Gloria Alston, the administrator of the decedent's estate. The defendantsmoved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint, and theplaintiff cross-moved for leave to amend the complaint to add causes of action to windup the affairs of Clifton and for an accounting. The Supreme Court granted the plaintiff'scross motion and the defendants appealed, arguing, among other things, that theplaintiff's proposed amended complaint was time-barred because Clifton was dissolvedin 2000 when the plaintiff allegedly was "expelled from the company." In a decision andorder dated December 8, 2009, this Court, among other things, rejected that contentionby determining that "Clifton was not previously dissolved" (Sealy v Clifton, LLC, 68AD3d 846, 848 [2009]). This Court explained that "[t]here is nothing in the recordto indicate that the affairs of Clifton were wound up as required by Limited LiabilityCompany Law § 701, that the articles of dissolution were filed with the Secretaryof State as required by Limited Liability Company Law § 705, or that, if Cliftonhad been dissolved and Alston had elected to continue the business while he was stillalive, Alston had served [the plaintiff] with notice of that election, as required byClifton's operating agreement" (id.).
The action was subsequently transferred to the Surrogate's Court. Thereafter, theplaintiff moved, among other things, in effect, for summary judgment determining thatClifton was dissolved by Alston's death, and on the third cause of action in the amendedcomplaint for an accounting. In an order dated June 13, 2011, the Surrogate's Court,among other things, granted [*2]those branches of theplaintiff's motion.
The Surrogate's Court properly determined that Clifton was dissolved by Alston'sdeath. Contrary to the defendants' contention, this Court's determination on the priorappeal rejecting the defendants' argument that the plaintiff's proposed amendedcomplaint was time-barred because Clifton was dissolved in 2000 when the plaintiffallegedly was "expelled from the company" constituted the law of the case, whichforecloses reexamination of that issue, absent a showing of newly discovered evidence ora change in the law (see id.; Clinkscale v Sampson, 104 AD3d 722 [2013]). Thedefendants failed to present any new evidence which would change that determination orevidence of a change in the law (see Clinkscale v Sampson, 104 AD3d 722 [2013]). Further,contrary to the defendants' contention, the subject motion was not premature, as "theyfailed to demonstrate how discovery may reveal or lead to relevant evidence or that 'factsessential to opposing the motion were exclusively within' [the plaintiff's] 'knowledge andcontrol' " (Norero v 99-105Third Ave. Realty, LLC, 96 AD3d 727, 728 [2012], quoting Espada v City of New York,74 AD3d 1276, 1277 [2010]; see CPLR 3212 [f]). The defendants'remaining contentions are either without merit or not properly before this Court.Accordingly, the order dated June 13, 2011, must be affirmed insofar as appealed from.Angiolillo, J.P., Chambers, Hall and Roman, JJ., concur.