Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered October 25, 2011.
J.N.K. Mach. Corp. v TBW, Ltd
Appellate Division, Fourth Department
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.
Decided on September 28, 2012
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
The order denied the motion of defendants for leave to serve an amended answer and counterclaim.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied defendants' motion seeking leave to amend their answer to include additional allegations in their counterclaim for the breach of an agreement allowing defendants to use plaintiff's inventory computer program. The court previously issued an order granting in part an amended motion by plaintiff for partial summary judgment, and we modified the order by denying the amended motion "on the issue concerning defendants' use of the computer inventory program owned by plaintiff," determining that there was a triable issue of fact whether the parties' written contract was supplemented by an oral agreement concerning defendants' use of the computer inventory program (J.N.K. Mach. Corp. v TBW, Ltd., 81 AD3d 1438, 1440). "Although leave to amend should be freely granted, it is properly denied where the proposed amendment is lacking in merit" (Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001; see Christiano v Chiarenza, 1 AD3d 1039, 1040). Here, the proposed amendment improperly sought relief that was inconsistent with this Court's decision in the prior appeal. "Our prior decision in [a] case is the law of the case until modified or reversed by a higher court, and the trial court is bound by our decision" (Senf v Staubitz, 11 AD3d 997, 997 [internal quotation marks omitted]). Entered: September 28, 2012 Frances E. Cafarell Clerk of the Court
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