| Strujan v Glencord Bldg. Corp. |
| 2016 NY Slip Op 02347 [137 AD3d 1252] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Elena Strujan, Appellant, v Glencord BuildingCorp. et al., Respondents, et al., Defendants. |
Elena Strujan, New York, NY, appellant pro se.
Fiden & Norris, LLP, New York, NY (Austin Jacobson of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals(1), as limited by her brief, from so much of an order of the Supreme Court, KingsCounty (Partnow, J.), dated September 10, 2013, as denied, with prejudice, her motionfor leave to amend the complaint, and (2) from an order of the same court datedSeptember 23, 2013, which, in effect, granted the cross motion of the defendantsGlencord Building Corp., Giustizia Aggressivo, LLC, and Constance Cincotta to directthe plaintiff to make all further applications for relief by order to show cause.
Ordered that the order dated September 10, 2013 is affirmed insofar as appealedfrom; and it is further,
Ordered that the order dated September 23, 2013 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants Glencord Building Corp.,Giustizia Aggressivo, LLC, and Constance Cincotta.
In this action, inter alia, to recover damages for personal injuries, the plaintiff movedfor leave to amend the complaint. In an order dated January 10, 2012, the SupremeCourt, in effect, held the motion in abeyance because the plaintiff had failed to attach herproposed amended complaint to her motion papers, and directed her to serve theproposed amended complaint on the respondents. The plaintiff did so and, in an orderdated January 10, 2013, the court denied the plaintiff's motion for leave to amend thecomplaint.
By notice of motion dated January 28, 2013, the plaintiff again moved for leave toamend her complaint. The defendants Glencord Building Corp., Giustizia Aggressivo,LLC, and Constance Cincotta (hereinafter together the defendants) cross-moved to directthe plaintiff to make all further applications for relief by order to show cause. In an orderdated September 10, 2013, the Supreme Court denied, with prejudice, the plaintiff'smotion for leave to amend her complaint. In an order dated September 23, 2013, theSupreme Court, in effect, granted the defendants' cross motion to direct the plaintiff tomake all further applications for relief by order to show cause. The plaintiff appeals.
" 'The doctrine of the "law of the case" is a rule of practice, an articulation ofsound policy that, when an issue is once judicially determined, that should be the end ofthe matter as far [*2]as Judges and courts of co-ordinatejurisdiction are concerned' " (Clark v Clark, 117 AD3d 668, 669 [2014], quotingMartin v City of Cohoes, 37 NY2d 162, 165 [1975]; see Erickson v Cross Ready Mix,Inc., 98 AD3d 717, 717 [2012]). " '[T]he "law of the case" operates toforeclose re-examination of [the] question absent a showing of subsequent evidence orchange of law' " (J-MarServ. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809 [2007],quoting Matter of Yeampierre v Gutman, 57 AD2d 898, 899 [1977]). "Thedoctrine 'applies only to legal determinations that were necessarily resolved on the meritsin [a] prior decision' " (Erickson v Cross Ready Mix, Inc., 98 AD3d at717, quoting Baldasano v Bank of N.Y., 199 AD2d 184, 185 [1993]; see Ramanathan v Aharon, 109AD3d 529, 530 [2013]).
Inasmuch as the Supreme Court's order dated January 10, 2013 denied the plaintiff'smotion for leave to amend her complaint on the merits, that order is law of the case. Theplaintiff's subsequent motion did not point to a change of law, nor was it supported bynew evidence (see J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45AD3d at 809). Accordingly, the plaintiff's motion for leave to amend was barred by thelaw of the case doctrine. In any event, the plaintiff's proposed amendments are "palpablyinsufficient [and] patently devoid of merit" (Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121AD3d 775, 777 [2014]) and, thus, the amendment was properly denied on themerits.
Furthermore, although a pro se litigant is afforded "some latitude," he or she is notentitled to rights greater than any other litigant (Mirzoeff v Nagar, 52 AD3d 789, 789 [2008]). Here, giventhe plaintiff's history of interposing duplicative motions, the Supreme Court providentlyexercised its discretion by imposing the modest limitation of requiring the plaintiff tomake any further applications for relief by order to show cause (see Matter of Simpson vPtaszynska, 41 AD3d 607, 608 [2007]; Duffy v Holt-Harris, 260 AD2d595, 596 [1999]). Leventhal, J.P., Dickerson, Roman and Maltese, JJ., concur.