MAR SERVICE CENTER INC v. Donal M. Mahoney, et al., respondents.

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Supreme Court, Appellate Division, Second Department, New York.

J-MAR SERVICE CENTER, INC., et al., appellants, v. MAHONEY, CONNOR & HUSSEY, et al., defendants, Donal M. Mahoney, et al., respondents.

Decided: November 27, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Rosen & Livingston, New York, N.Y. (Peter I. Livingston and Deborah B. Koplovitz of counsel), for appellants. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Peter D. Rigelhaupt of counsel), for respondents Donal M. Mahoney and Brian M. Hussey. McManus, Collura & Richter, P.C., New York, N.Y. (Nicholas P. Chrysanthem of counsel), for respondent Peter T. Connor. Charles D. Hellman, New York, N.Y., for respondent Dennis Connor.

In an action to recover damages for breach of contract and legal malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), entered April 19, 2006, as granted the separate motions of the defendants Donal M. Mahoney and Brian M. Hussey, Peter T. Connor, and Dennis Connor to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against them on the ground of collateral estoppel.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the separate motions of the defendants Donal M. Mahoney and Brian M. Hussey, Peter T. Connor, and Dennis Connor to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against them are denied.

 An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court (see Quinn v. Hillside Dev. Corp., 21 A.D.3d 406, 407, 800 N.Y.S.2d 206;  Matter of Oak St. Mgt., Inc., 20 A.D.3d 571, 799 N.Y.S.2d 556;  Johnson v. Incorporated Vil. of Freeport, 288 A.D.2d 269, 733 N.Y.S.2d 622;  Mooney v. PCM Dev. Co., 253 A.D.2d 454, 455, 675 N.Y.S.2d 316;  Shroid Constr. v. Dattoma, 250 A.D.2d 590, 672 N.Y.S.2d 389).  “[T]he ‘law of the case’ operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law” (Matter of Yeampierre v. Gutman, 57 A.D.2d 898, 899, 394 N.Y.S.2d 450;  see Lipovsky v. Lipovsky, 271 A.D.2d 658, 658, 706 N.Y.S.2d 185;  McIvor v. Di Benedetto, 121 A.D.2d 519, 522, 503 N.Y.S.2d 836).

 On a prior appeal, upon reviewing the denial of various motions by the respondents to dismiss this action to recover damages for legal malpractice, this Court found that they had failed to meet their burden of demonstrating “that the plaintiffs were unable to prove at least one of the essential elements of a cause of action to recover damages for legal malpractice” (J-Mar Serv. Ctr. Inc. v. Mahoney, Connor & Hussey, 14 A.D.3d 482, 483, 787 N.Y.S.2d 390).   We further found, inter alia, that the respondents' remaining contentions, which included their argument that the cause of action to recover damages for legal malpractice was barred by the doctrine of collateral estoppel, were without merit.   This Court's determination of these issues on the prior appeal constituted the law of the case, which was binding upon the Supreme Court, “and is binding upon this Court in the absence of a showing of extraordinary circumstances” (Vanguard Tours v. Town of Yorktown, 102 A.D.2d 868, 868, 477 N.Y.S.2d 40;  see Pekich v. James E. Lawrence, Inc., 38 A.D.3d 632, 633, 832 N.Y.S.2d 259).

Contrary to the determination of the Supreme Court, Rosenkrantz v. Harriet M. Steinberg, P.C., 13 A.D.3d 88, 786 N.Y.S.2d 35 is inapplicable to this case because neither the trial court, nor this Court on appeal, ever reached the merits of the underlying action (see J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 14 A.D.3d 482, 483, 787 N.Y.S.2d 390).

Additionally, contrary to the contention of Mahoney and Hussey, they did not submit new evidence that would warrant a departure from our earlier determination that the respondents had failed “to demonstrate that the plaintiffs were unable to prove at least one of the essential elements of a cause of action to recover damages for legal malpractice” (J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 14 A.D.3d 482, 483, 787 N.Y.S.2d 390).

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