| Madison Acquisition Group, LLC v 7614 Fourth Real EstateDev., LLC |
| 2015 NY Slip Op 08813 [134 AD3d 683] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| Madison Acquisition Group, LLC,Appellant, v 7614 Fourth Real Estate Development, LLC, et al., Defendants, andMousa Khalil, Respondent. |
Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein and Michael J.Bonneville of counsel), for appellant.
Yolande I. Nicholson, Brooklyn, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Lewis, J.), dated January 27,2014, as denied that branch of its motion which was pursuant to CPLR 3217 (b) tovoluntarily discontinue the action insofar as asserted against the defendant Mousa Khalil,and granted that branch of the motion of the defendant Mousa Khalil which was pursuantto CPLR 5015 (a) to vacate an order of the same court dated October 7, 2011, and ajudgment of foreclosure and sale of the same court dated January 17, 2012, each ofwhich was entered upon his failure to answer the complaint.
Ordered that the order dated January 27, 2014, is modified, on the law, by deletingthe provision thereof granting that branch of the motion of the defendant Mousa Khalilwhich was to vacate the order dated October 7, 2011, and the judgment of foreclosureand sale, and substituting therefor a provision denying that branch of his motion; as somodified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
"An appellate court's resolution of an issue on a prior appeal constitutes the law ofthe case and is binding on the Supreme Court, as well as on the appellate court" (J-Mar Serv. Ctr., Inc. v Mahoney,Connor & Hussey, 45 AD3d 809, 809 [2007]). Here, the defendant MousaKhalil made a prior motion to vacate the judgment of foreclosure and sale dated January17, 2012, entered upon his failure to answer the complaint. On a prior appeal, this Courtdetermined that the Supreme Court should not have granted that motion because Khalilfailed to demonstrate a reasonable excuse for his default or a potentially meritoriousdefense, as required for vacatur pursuant to CPLR 5015 (a) (1) (see Madison Acquisition Group,LLC v 7614 Fourth Real Estate Dev., LLC, 111 AD3d 800 [2013]). AlthoughKhalil denominated his present motion as one seeking vacatur pursuant to CPLR 5015(a) (3), the arguments he raised in support thereof were previously raised in support ofhis claim that he had a meritorious defense in connection with his prior motion to vacatethe judgment of foreclosure and sale. Since this Court previously determined that thesearguments are without merit, the doctrine of law of the case barred Khalil fromrelitigating these issues. Accordingly, the Supreme Court should have denied that branchof Khalil's present motion which was to vacate an [*2]order dated October 7, 2011, and the judgment offoreclosure and sale, each of which was entered upon his failure to answer thecomplaint.
Contrary to the plaintiff's contention, the Supreme Court properly denied that branchof its motion which was pursuant to CPLR 3217 (b) to discontinue the action insofar asasserted against Khalil. "In general, absent a showing of special circumstances. . . a motion for a voluntary discontinuance should be granted withoutprejudice" (American Tr. Ins.Co. v Roberson, 114 AD3d 821, 821 [2014]). However, where, as here, thematter has been submitted to the court, "the court may not order an action discontinuedexcept upon the stipulation of all parties appearing in the action" (CPLR 3217 [b]). Inthis case, there was no stipulation from the parties. Thus, the court properly denied thatbranch of the plaintiff's motion which was for a voluntary discontinuance with respect toKhalil (see Stone Mtn.Holdings, LLC v Spitzer, 119 AD3d 548, 549 [2014]). Rivera, J.P., Roman,LaSalle and Barros, JJ., concur.