ENTECH ENGINEERING v. Hartford Fire Insurance Company, Defendant. (2024)

Judgment, Supreme Court, New York County (Melissa A. Crane, J.), entered February 8, 2023, awarding defendant Dewberry Engineers Inc. $428,848.68, and bringing up for review an order, same court and Justice, entered January 24, 2023, which granted defendant's motion for attorneys’ fees, unanimously affirmed, with costs.  Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court properly awarded defendant attorneys’ fees pursuant to the attorneys’ fees provision in the parties’ subcontract.  Plaintiff argues that defendant failed to satisfy the requirements under Virginia law in asserting its claim for attorneys’ fees.  Contrary to plaintiff's assertion, in deciding the parties’ prior summary judgment motions, the court ruled in plaintiff's favor on the inapplicability of the Virginia choice-of-law clause in the subcontract, and held that New York law should apply;  a decision this Court affirmed (Entech Eng'g, P.C. v. Dewberry Engrs. Inc., 204 A.D.3d 467, 167 N.Y.S.3d 55 [1st Dept. 2022]).  Therefore, the prior decision that New York law applies is law of the case (see Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 79 A.D.3d 417, 418, 911 N.Y.S.2d 610 [1st Dept. 2010], affd on other grounds 18 N.Y.3d 617, 942 N.Y.S.2d 19, 965 N.E.2d 246 [2012], cert denied 568 U.S. 1028, 133 S.Ct. 654, 184 L.Ed.2d 461 [2012]).

Moreover, given that plaintiff obtained the ruling it sought on the choice-of-law issue, it is judicially estopped from contravening that position now, after its legal interests have changed (see Nestor v. Britt, 270 A.D.2d 192, 193, 707 N.Y.S.2d 11 [1st Dept. 2000]).

Defendant's request for sanctions is denied without prejudice to defendant seeking sanctions in Supreme Court and without prejudice to any subsequent motion for fees.