NAMA Holdings, LLC v Greenberg Traurig, LLP
Decided on February 28, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered December 2, 2010, which, insofar as appealed from, denied defendants Shawn Samson and Jack Kashani's (defendants) motion to dismiss the second amended complaint, unanimously affirmed, with costs.
We start with the necessary observation that defendants' arguments are, in the main, frivolous. " 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 the appellate court . . . [and] operates to foreclose reexamination of [the] question absent a showing of subsequent evidence or change in law'" (Kenney v City of New York, 74 AD3d 630, 630-31  [citations omitted]). In our order entered September 7, 2010, we held "that the determinations of the arbitration support, more than preclude, the plaintiffs' claims here" (76 AD3d 804, 805 ). In that order, we also agreed with the California District Court that defendants were engaged in "bad faith and procedural gamesmanship" designed to frustrate plaintiff's attempts to hold them accountable in any forum (id.). There has not been a showing of subsequently developed evidence or a change in law since we made such pronouncements to warrant a reexamination of the preclusion question.
Defendants contend that the arbitration award precludes this action against them. However, the award specifically stated that it was "not intended to adjudicate or settle any claims of the parties not subject to this panel's jurisdiction and being pursued in another forum, or any claims by or against entities or persons who are not parties to this arbitration." That provision of the arbitration award was not mere verbiage, as the arbitrators were personally aware of the dismissal of defendants from the arbitration, and of the related litigation which had been brought against them.
The motion court correctly rejected defendants' argument that the second amended complaint was barred on the ground that plaintiff is unfit to derivatively represent Alliance Network, LLC and its other members. The motion court correctly cited to our order entered May 26, 2009, in which we previously ruled that plaintiff had standing to bring this derivative action (62 AD3d 578 ).
We have reviewed defendants' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2012
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