GARCIA v. Wanka Peruvian Chicken Corp., third-party defendant-respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered January 27, 2021.  The order denied the motion of the defendants third-party plaintiffs for summary judgment on the third-party cause of action for contractual indemnification.

ORDERED that the order is affirmed, with costs.

Ripley Enterprises was the owner of a building located in Maspeth.  Wanka Peruvian Chicken Corp. (hereinafter the tenant) leased the first floor and basement of the building for the purposes of operating a restaurant.  In January 2013, the plaintiff, an employee of the tenant, allegedly was injured when he tripped and fell on a concrete surface in the rear yard of the building.  In January 2014, the plaintiff commenced this personal injury action (hereinafter the main action) against Ripley Enterprises' principal (hereinafter the landlord).  The landlord answered the complaint and commenced a third-party action against the tenant, seeking, inter alia, contractual indemnification.  Following the completion of discovery, the landlord moved, among other things, for summary judgment on the third-party cause of action for contractual indemnification.  In an order dated October 18, 2017, the Supreme Court, inter alia, denied that branch of the landlord's motion (hereinafter the 2017 order).

In January 2020, the plaintiff and the landlord settled the main action.  A general release in favor of the landlord was executed by the plaintiff, and a partial stipulation of discontinuance, which expressly preserved the third-party action between the landlord and the tenant, was filed.

The landlord thereafter moved again for summary judgment on its third-party cause of action for contractual indemnification.  In an order entered January 27, 2021, the Supreme Court denied the landlord's motion.  The court determined that the 2017 order denying that branch of the landlord's prior motion which was for summary judgment on the third-party cause of action for contractual indemnification was the law of the case and therefore precluded re-litigation of the same issue.  The landlord appeals from the order entered January 27, 2021.

The law of the case doctrine “ ‘forecloses reexamination of [an issue already determined in a court of co-ordinate jurisdiction] absent a showing of newly discovered evidence or a change in the law’ ” (Vehifax Corp. v. Georgilis, 205 A.D.3d 973, 975, 169 N.Y.S.3d 110, quoting Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 116 A.D.3d 667, 669, 983 N.Y.S.2d 293;  see Matter of Koegel, 184 A.D.3d 764, 765, 126 N.Y.S.3d 153, affd sub nom Anderson v. Anderson, 37 N.Y.3d 444, 159 N.Y.S.3d 743, 180 N.E.3d 1043).  “Law of the case ‘applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case’ ” (Matter of Koegel, 184 A.D.3d at 766, 126 N.Y.S.3d 153, quoting Ramanathan v. Aharon, 109 A.D.3d 529, 530, 970 N.Y.S.2d 574;  see Strujan v. Glencord Bldg. Corp., 137 A.D.3d 1252, 1253, 29 N.Y.S.3d 398).

Inasmuch as the 2017 order denied that branch of the landlord's motion which was for summary judgment on its third-party cause of action for contractual indemnification on the merits, that order is the law of the case.  The landlord's subsequent motion seeking the same relief did not point to a change of law nor was it supported by new evidence (see Wolf Props. Assoc., L.P. v. Castle Restoration, LLC, 174 A.D.3d 838, 842, 106 N.Y.S.3d 313;  Strujan v. Glencord Bldg. Corp., 137 A.D.3d at 1254, 29 N.Y.S.3d 398;  Kaygreen Realty Co., LLC v. IG Second Generation Partners, L.P., 116 A.D.3d at 669, 983 N.Y.S.2d 293).

Furthermore, as the tenant correctly contends, the landlord's motion was an improper successive motion for summary judgment, and the landlord failed to demonstrate the existence of any newly discovered evidence or other cause sufficient for the Supreme Court to consider the second motion for summary judgment (see Sutter v. Wakefern Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764;  313 43rd St. Realty, LLC v. TMS Enters., LP, 215 A.D.3d 901, 903, 188 N.Y.S.3d 560).  In addition, pursuant to CPLR 3212(a), unless the court directs otherwise, a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431;  Navarro v. Damac Realty, LLC, 202 A.D.3d 1100, 1101, 159 N.Y.S.3d 887).  Here, the landlord failed to establish good cause for moving for summary judgment more than six years after the note of issue was filed and more than three years after discovery was completed.  Accordingly, the motion was untimely.

In light of our determination, the landlord's remaining contention need not be reached.

CONNOLLY, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.