ESTATE OF SASSA v. ALFIERI (2005)

In an action, inter alia, to recover damages for fraud and unjust enrichment, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated October 30, 2003, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

That branch of the defendants' motion which was for summary judgment dismissing the complaint was based on the same legal arguments and, to a large extent, on the same evidence previously considered by this court in reviewing the denial of a prior motion by the defendants seeking the same relief (see Sassa v. Alfieri, 259 A.D.2d 690, 686 N.Y.S.2d 844).   On the prior appeal, this court found that the evidence in the record “establish[ed] the existence of material issues of fact with respect to [the plaintiff's] allegation that he was a one-half owner of the defendant corporations” (Sassa v. Alfieri, supra at 691, 686 N.Y.S.2d 844).   The defendants' attempt to distinguish the subject motion from their prior motion is unavailing as the new evidence relied upon does not resolve the material issues of fact found to exist.   Under these circumstances, the defendants' contentions are barred by the doctrine of law of the case (see Mobil Oil Corp. v. City of Syracuse Indus. Dev. Agency, 224 A.D.2d 15, 19, 646 N.Y.S.2d 741;  Anderson v. Anderson, 291 A.D.2d 836, 837, 737 N.Y.S.2d 313).