| Certain Underwriters at Lloyd's London v North Shore SignatureHomes, Inc. |
| 2015 NY Slip Op 01409 [125 AD3d 799] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Certain Underwriters at Lloyd's London, Subscribing toPolicy No. APH 0100472, as Subrogee of Tal and Aharon Philipson,Respondent, v North Shore Signature Homes, Inc., et al., Appellants. (ActionNo. 1.) State Farm Insurance Company, as Subrogee of Marilyn M. Salierno, Plaintiff, vNorth Shore Signature Homes, Inc., et al., Defendants. (And a Third-Party Action.)(Action No. 2.) |
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Sarah M.Ziolkowski of counsel), for appellant North Shore Signature Homes, Inc.
Farber Brocks & Zane LLP, Garden City, N.Y. (Tracy L. Frankel and Jessica L.Stone of counsel), for appellant Richard Wischhusen.
Nelson Levine de Luca & Hamilton, LLC, New York, N.Y. (Jeffrey S. Mattyand Ryan M. Cleary of counsel), for respondent.
In related subrogation actions to recover benefits paid to the plaintiffs' insureds, thedefendant Richard Wischhusen appeals, and the defendant North Shore SignatureHomes, Inc., separately appeals, from so much of an order of the Supreme Court, NassauCounty (Jaeger, J.), entered October 16, 2012, as granted that branch of the motion of theplaintiff in action No. 1 which was pursuant to CPLR 3103 (a) for a protective orderpreventing the disclosure of its insurance coverage file referable to the underlyingproperty damage claim, and denied those branches of those defendants' respective crossmotions which were pursuant to CPLR 3124 to compel the disclosure of that file.
Ordered that the order is affirmed insofar as appealed from, with one bill ofcosts.
Contrary to the contention of the defendants Richard Wischhusen and North ShoreSignature Homes, Inc. (hereinafter North Shore), the Supreme Court properly grantedthat branch of the motion of the plaintiff insurer in action No. 1 which was for aprotective order preventing the disclosure of its insurance coverage file referable to theunderlying property damage claim, and properly denied those branches of their respectivecross motions which were to compel disclosure of that file. In reaching its conclusions,the Supreme Court properly applied the law of the case doctrine, since, in an order datedMay 24, 2011, from which Wischhusen and North Shore did not appeal, the court hadalready determined that the disputed file was not discoverable (see Martin v [*2]City of Cohoes, 37 NY2d 162, 165 [1975]; Erickson v Cross Ready Mix,Inc., 98 AD3d 717 [2012]). Although the law of the case doctrine does not bindan appellate court to a determination of a nisi prius court (see Latture v Smith,304 AD2d 534, 535 [2003]), we decline to exercise our discretion to consider thecontentions of Wischhusen and North Shore on the merits (see Grossman v Team Care HomeCare Agency, Inc., 14 AD3d 652 [2005]; Avid Equities v Commerce &Indus. Ins. Co., 225 AD2d 446 [1996]; Haibi v Haibi, 171 AD2d 842, 843[1991]; Baron v Baron, 128 AD2d 821, 822 [1987]). Dillon, J.P., Leventhal,Chambers and Duffy, JJ., concur.