Opinion
2018-11068 Index No. 220/07
04-07-2021
Robert J. CONGEL, et al., respondents, v. Marc A. MALFITANO, appellant.
Harris Beach PLLC, Albany, N.Y. (Victoria A. Graffeo and Svetlana K. Ivy of counsel), for appellant. Goodwin Procter LLP, New York, N.Y. (Anthony S. Fiotto and Brian T. Burgess of counsel), for respondents.
Harris Beach PLLC, Albany, N.Y. (Victoria A. Graffeo and Svetlana K. Ivy of counsel), for appellant.
Goodwin Procter LLP, New York, N.Y. (Anthony S. Fiotto and Brian T. Burgess of counsel), for respondents.
LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty and for a judgment declaring that the defendant wrongfully dissolved the Poughkeepsie Galleria Company Partnership, the defendant appeals from a third amended judgment of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated August 1, 2018. The third amended judgment, insofar as appealed from, upon remittitur from the Court of Appeals (see Congel v. Malfitano, 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341 ), failed to award the defendant prejudgment statutory interest pursuant to CPLR 5001(a) from November 24, 2006, or, alternatively, to allow the defendant to elect, in lieu of prejudgment statutory interest, receipt of the value of his share of certain partnership profits pursuant to Partnership Law § 73.
ORDERED that the third amended judgment is affirmed insofar as appealed from, with costs.
The underlying facts and procedural history of this action are summarized in our decisions and orders in several prior related appeals (see Congel v. Malfitano, 141 A.D.3d 64, 32 N.Y.S.3d 264, mod 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341 ; Congel v. Malfitano, 84 A.D.3d 1145, 924 N.Y.S.2d 129 ; Congel v. Malfitano, 61 A.D.3d 810, 877 N.Y.S.2d 441, mod 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341 ; Congel v. Malfitano, 61 A.D.3d 807, 877 N.Y.S.2d 443, mod 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341 ), as well as the opinion by the Court of Appeals, Congel v. Malfitano, 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341. In Congel v. Malfitano, 31 N.Y.3d 272, 76 N.Y.S.3d 873, 101 N.E.3d 341, the Court of Appeals remitted the matter to the Supreme Court, Dutchess County, in effect, for the entry of an amended judgment that addressed the Court of Appeals' determination that, contrary to this Court's prior determination (see Congel v. Malfitano, 141 A.D.3d 64, 32 N.Y.S.3d 264 ), the plaintiffs were not entitled to an award of attorney's and expert fees as an offset to the defendant's award representing the net value of his interest in the subject partnership. Upon remittitur from the Court of Appeals, the Supreme Court issued a third amended judgment dated August 1, 2018, in favor of the defendant and against the plaintiffs in the principal sum of $911,072.50, which accounted for the Court of Appeals' determination on the plaintiffs' attorney's and expert fees. The defendant appeals from the third amended judgment, contending that the Supreme Court erred by failing to award him prejudgment interest pursuant to CPLR 5001(a), or, alternatively, by failing to permit him to elect, in lieu of prejudgment statutory interest, receipt of the value of his share of certain partnership profits pursuant to Partnership Law § 73.
The defendant's contentions were previously determined adversely against him in two prior appeals in this action (see Congel v. Malfitano, 141 A.D.3d 64, 32 N.Y.S.3d 264 ; Congel v. Malfitano, 84 A.D.3d 1145, 924 N.Y.S.2d 129 ). Further, the defendant has not demonstrated to this Court new factual circumstances, additional relevant evidence, or a change in the law which would warrant reconsideration of these issues (see Matter of 24 Franklin Ave. R.E. Corp. v. Heaship, 101 A.D.3d 1034, 1036, 956 N.Y.S.2d 186 ). Accordingly, the defendant is foreclosed under the law of the case doctrine from relitigating his claims for prejudgment interest pursuant to CPLR 5001(a) as well as his alternative claim for relief pursuant to Partnership Law § 73 (see Pascual v. Rustic Woods Homeowners Assn., Inc., 173 A.D.3d 756, 99 N.Y.S.3d 710 ; Schulman Family Enters. v. Schulman, 167 A.D.3d 959, 90 N.Y.S.3d 233 ; Pathak v. Shukla, 164 A.D.3d 687, 81 N.Y.S.3d 549 ).
AUSTIN, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.