Opinion
2017–06792 Index No. 10591/07
02-13-2019
JFK FAMILY LTD. PARTNERSHIP, et al., Respondents, v. MILLBRAE NATURAL GAS DEVELOPMENT FUND 2005, L.P., et al., Appellants.
Mintz & Gold, LLP, New York, N.Y. (Steven Mintz, Howard Miller, New York, Scott A. Klein, Bronx, and Kevin M. Brown, New York, of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (John M. Flannery, White Plains, Frank T. Laznovsky, Garden City, and John B. Martin, White Plains, of counsel), for respondents.
Mintz & Gold, LLP, New York, N.Y. (Steven Mintz, Howard Miller, New York, Scott A. Klein, Bronx, and Kevin M. Brown, New York, of counsel), for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (John M. Flannery, White Plains, Frank T. Laznovsky, Garden City, and John B. Martin, White Plains, of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, breach of fiduciary duty, and breach of an implied covenant of good faith and fair dealing, the defendants appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated May 8, 2017. The order, insofar as appealed from, granted the plaintiffs' motion pursuant to CPLR 3211(a)(7) to dismiss the defendants' second counterclaim asserted in the answer to the fifth amended complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiffs' motion pursuant to CPLR 3211(a)(7) to dismiss the defendants' second counterclaim asserted in the answer to the fifth amended complaint is denied. The underlying dispute between the parties is summarized in our decisions and orders in the prior appeals, JFK Family L.P. v. Millbrae Natural Gas Dev. Fund, 2005, L.P., 132 A.D.3d 731, 17 N.Y.S.3d 765 and JFK Family L.P. v. Millbrae Natural Gas Dev. Fund 2005, L.P., 132 A.D.3d 729, 17 N.Y.S.3d 875. Insofar as is pertinent to this appeal, the defendants seek in their second counterclaim to recover the attorneys' fees and related legal expenses incurred by them in defending against this action, pursuant to the contractual indemnity provision found in section 6 of the Subscription Agreement, which is one of the documents comprising the partnership agreement involving the parties. The plaintiffs moved to dismiss that counterclaim pursuant to CPLR 3211(a)(7), and the defendants opposed the motion, citing, inter alia, the law of the case doctrine. The Supreme Court, after rejecting the defendants' law of the case defense, granted the motion. The defendants appeal, and we reverse insofar as appealed from.
On the prior appeal, this Court affirmed so much of an order of the Supreme Court as denied the plaintiffs' cross motion for summary judgment dismissing the defendants' second counterclaim asserted in the answer to the third amended complaint (see JFK Family L.P. v. Millbrae Natural Gas Dev. Fund 2005, L.P., 132 A.D.3d 729, 17 N.Y.S.3d 875 ), which was materially identical to the instant second counterclaim asserted in the defendants' answer to the fifth amended complaint. We agree with the defendants that, under these circumstances, the doctrine of the law of the case precludes reconsideration of the viability of the defendants' second counterclaim sounding in contractual indemnification (see Mass OP, LLC v. Principal Life Ins. Co., 99 A.D.3d 870, 953 N.Y.S.2d 90 ; J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 ; 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 ).
Accordingly, the Supreme Court should have denied the plaintiffs' motion pursuant to CPLR 3211(a)(7) to dismiss the defendants' second counterclaim asserted in the answer to the fifth amended complaint.
LEVENTHAL, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.