| Ramanathan v Aharon |
| 2013 NY Slip Op 05621 [109 AD3d 529] |
| August 14, 2013 |
| Appellate Division, Second Department |
| Henry Ramanathan et al., Respondents, v ShmuelAharon et al., Appellants. (And a Third-Party Action.) |
—[*1] Robert Litwack, Forest Hills, N.Y., for respondents.
In an action, inter alia, for ejectment and to recover damages for trespass, thedefendants appeal (1), as limited by their notice of appeal and brief, from so much of anorder of the Supreme Court, Queens County (Gavrin, J.), entered May 5, 2011, asgranted that branch of the plaintiffs' motion which was pursuant to CPLR 3211 (b) todismiss their affirmative defense, and (2), as limited by their brief, from so much of anorder of the same court entered February 9, 2012, as granted the plaintiffs' separatemotion for summary judgment on the complaint.
Ordered that the orders are reversed insofar as appealed from, on the law, with onebill of costs, that branch of the plaintiffs' motion which was pursuant to CPLR 3211 (b)to dismiss the affirmative defense is denied, and the plaintiffs' separate motion forsummary judgment on the complaint is denied.
The plaintiffs own a parcel of real property in Holliswood, Queens. The defendantsown an adjacent parcel of real property. In September 2009, the plaintiffs commencedthis action, inter alia, for ejectment and to recover damages for trespass, alleging, amongother things, that the defendants own a fence which encroaches on the plaintiffs'property. The defendants raised the affirmative defense that the fence is located on thedefendants' property, not the plaintiffs' property.
The defendants commenced a third-party action against their title insurer, FidelityNational Title Insurance Company of New York (hereinafter Fidelity), alleging that aFidelity policy covered any losses that the defendants might sustain as a result of theinstant action. Fidelity moved pursuant to CPLR 3211 to dismiss the third-partycomplaint. Fidelity argued, inter alia, that the actual location of the fence is a disputesolely between the plaintiff and the defendant that was "entirely unrelated" to thedefendants' title or their title insurance policy with Fidelity. Fidelity further argued thatany possible damages arising from the dispute about the actual location of the fence werenot covered by the policy. In an order dated September 9, 2010, the Supreme Courtgranted Fidelity's motion based on its determination, inter alia, that the parties' disputeabout whether the fence was located on the defendants' property or on the plaintiffs'property "does not implicate title," and that, in any event, any "variance" in the locationof the fence was specifically excepted by the policy. After making this determination, theSupreme Court noted that one of two surveys in evidence showed that the fence waslocated on the plaintiffs' property and that none of [*2]theother evidence before it depicted the fence on the defendants' property.
Subsequently, the plaintiffs moved, inter alia, pursuant to CPLR 3211 (b) to dismissthe affirmative defense alleging that the fence was on the defendants' property. Theplaintiffs argued, among other things, that it was the law of the case that the fence waslocated on the plaintiffs' property. The Supreme Court accepted that argument and, in anorder entered May 5, 2011, granted that branch of the plaintiffs' motion which was todismiss the affirmative defense.
Based on the Supreme Court's order directing the dismissal of the affirmative defenseand its prior determination that the doctrine of law of the case precluded any furtherconsideration of the issue of whether the fence was located on the plaintiffs' property, theplaintiffs moved for summary judgment on the complaint. In an order entered February 9,2012, the Supreme Court granted the plaintiffs' motion.
"The doctrine of the 'law of the case' is a rule of practice, an articulation of soundpolicy that, when an issue is once judicially determined, that should be the end of thematter as far as Judges and courts of coordinate jurisdiction are concerned" (Martin vCity of Cohoes, 37 NY2d 162, 165 [1975]). The doctrine "applies only to legaldeterminations that were necessarily resolved on the merits in [a] prior decision"(Baldasano v Bank of N.Y., 199 AD2d 184, 185 [1993]; see Gay v Farella, 5 AD3d540, 541 [2004]; D'Amato v Access Mfg., 305 AD2d 447, 448 [2003]), "andto the same questions presented in the same case" (RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740[2011], citing People v Evans, 94 NY2d 499, 502 [2000]; see Matter ofMcGrath v Gold, 36 NY2d 406, 413 [1975]; Erickson v Cross Ready Mix, Inc., 98 AD3d 717 [2012])."Like claim preclusion and issue preclusion, preclusion under the law of the casecontemplates that the parties had a 'full and fair' opportunity to litigate the initialdetermination" (People v Evans, 94 NY2d at 502).
Contrary to the determination of the Supreme Court, the prior order dated September9, 2010, which granted Fidelity's motion pursuant to CPLR 3211 to dismiss thethird-party complaint, did not necessarily resolve the issue of whether the fence waslocated on the plaintiffs' property or the defendants' property, as the parties did not havean opportunity to fully litigate that issue (see People v Evans, 94 NY2d at 502;cf. Wade v Village ofWhitehall, 46 AD3d 1302, 1303 [2007]; Guido v New York Tel. Co.,145 AD2d 203, 206 [1989]). In support of its motion, Fidelity argued that the policy didnot cover the main action regardless of where the fence was located. Since the partieswere not necessarily litigating that issue on Fidelity's motion, the Supreme Court was notbound by the doctrine of law of the case to find that the fence was in fact located on theplaintiffs' property.
In any event, this Court is not bound by the doctrine of law of the case, and maymake its own determinations as to whether the plaintiffs established as a matter of lawthat the fence encroached on their property (see Martin v City of Cohoes, 37NY2d 162 [1975]; Erickson v Cross Ready Mix, Inc., 98 AD3d at 718).
Here, the defendants contend that, ever since they purchased the property, there hasbeen a fence located along the boundary line separating the two subject parcels, but noton the plaintiffs' property. Throughout the course of the litigation, both parties reliedprimarily on two surveys of the defendants' property. A survey dated December 20, 1994,prepared approximately five years before the defendants purchased their parcel ofproperty, does not depict a fence encroaching on the plaintiffs' property. However, asurvey of the defendants' property, dated June 2, 2009, which was prepared by a differentsurveyor as a result of the underlying dispute, depicts a fence located on the plaintiffs'property, up to 7.8 feet beyond the boundary line. The plaintiffs' submissions did notestablish that the affirmative defense alleging that the fence was located on thedefendants' property was "without merit as a matter of law" (Vita v New York Waste Servs.,LLC, 34 AD3d 559 [2006]; see CPLR 3211 [b]; Greco v Christoffersen, 70AD3d 769, 771 [2010]) and, thus, the Supreme Court should have denied thatbranch of the plaintiffs' motion which was pursuant to CPLR 3211 (b) to dismiss thataffirmative defense.
Moreover, the plaintiffs failed to establish their prima facie entitlement to judgmentas a matter of law on the complaint (see Thomson v Nayyar, 90 AD3d 1024, 1025-1026 [2011];see also [*3]Zuckerman v City of New York, 49NY2d 557, 562 [1980]) and, thus, we need not consider the sufficiency of the defendants'opposition papers. Accordingly, the Supreme Court should have denied the plaintiffs'motion for summary judgment on the complaint. Dillon, J.P., Chambers, Roman andCohen, JJ., concur.