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Barretta Realty Skyline Div. of Real Property Technologies, LLC v. Sunrise Land Services Corp. Also Known As Sunrise Land Services & Settlement Corp

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 21, 2012

BARRETTA REALTY SKYLINE DIV. OF REAL PROPERTY TECHNOLOGIES, LLC,
APPELLANT,
v.
SUNRISE LAND SERVICES CORP. ALSO KNOWN AS SUNRISE LAND SERVICES & SETTLEMENT CORP.,
RESPONDENT.

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated December 15, 2011.

Barretta Realty Skyline Div. of Real Prop. Tech., LLC v Sunrise Land Servs. Corp.

Decided on December 21, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and LaSALLE, JJ

The order granted defendant's motion, in effect, to open a default.

ORDERED that the order is affirmed, without costs.

Plaintiff brought this action to recover the principal sum of $14,997 for charges plaintiff had allegedly incurred at defendant's request researching liens, liabilities and other matters affecting title. By order dated June 30, 2009, the District Court (Fred J. Hirsh, J.) vacated a default judgment that had been entered on March 12, 2009, finding that defendant had established a reasonable excuse for its default in answering and a meritorious defense. No appeal was taken from that order. Thereafter, defendant served and filed a verified answer, which generally denied liability, and interposed a counterclaim. Plaintiff subsequently moved for summary judgment. The District Court's order denying plaintiff's motion was affirmed by this court (Barretta Realty Skyline Div. of Real Prop. Tech., LLC v Sunrise Land Servs. Corp., 31 Misc 3d 34 [2011]).

Thereafter, defendant defaulted in an appearance in District Court, and the record reflects that, on June 17, 2011, the action was referred to the Inquest Clerk. The record further indicates that plaintiff's counsel thereafter submitted to the court a proposed judgment, which was not signed. It appears from defendant's unrefuted submissions that plaintiff then instructed the marshal to execute on the judgment entered on March 12, 2009, even though that judgment had been subsequently vacated by the District Court. After the marshal levied on defendant's bank account, defendant moved to, in effect, open its default and restore the action to the calendar. Plaintiff opposed the motion, which was nevertheless granted upon the court's finding that defendant had demonstrated in its moving papers a reasonable excuse for its default and a meritorious defense to the action. On appeal, plaintiff argues only that defendant failed to provide evidence of a meritorious defense sufficient to warrant vacatur of its default.

On its motion to, in effect, open its default and restore the action to the calendar, defendant was entitled to rely on the order of the District Court dated June 30, 2009, in which the District Court determined that defendant had a meritorious defense, as that determination constituted the law of the case (see People v Evans, 94 NY2d 499, 503-504 [2000]; RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740 [2011]). Since the District Court was bound by the law of the case doctrine, it should have based its finding of a meritorious defense solely thereon. While the law of the case doctrine and, thus, the order of June 30, 2009, is not binding on this court (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]; People v Gonzalez, 266 AD2d 562, 563 [1999]), under the circumstances presented, we decline to exercise our discretion to review, on the merits (see Haibi v Haibi, 171 AD2d 842, 843 [1991]; Post v Post, 141 AD2d 518 [1988]; Chan v Sheppard, 2002 NY Slip Op 40521[U] [App Term, 2d & 11th Jud Dists 2002]), the issue of whether defendant demonstrated a meritorious defense in the instant motion papers.

We note that we do not consider facts or issues raised by either of the parties which are dehors the record or are raised for the first time on appeal (see Terranova v Waheed Brokerage, Inc., 78 AD3d 1040 [2010]; Devellis v Lucci, 266 AD2d 180 [1999]; Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

Nicolai, P.J., LaCava and LaSalle, JJ., concur. Decision Date: December 21, 2012

20121221

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