Opinion
9118 9119 Index 650538/08EF
04-30-2019
R.F. SCHIFFMAN ASSOCIATES, INC., et al., Plaintiffs–Appellants, v. BAKER & DANIELS LLP, Defendant–Respondent, Weaver Popcorn Company, Inc., Defendant.
Carey & Associates LLC, New York (Michael Q. Carey of counsel), for appellants. Borg Law LLP, New York (Jonathan M. Borg of counsel), for respondent.
Carey & Associates LLC, New York (Michael Q. Carey of counsel), for appellants.
Borg Law LLP, New York (Jonathan M. Borg of counsel), for respondent.
Friedman, J.P., Gische, Webber, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about February 28, 2018, which granted plaintiffs principal and interest to the date of defendants' CPLR 3219 tender, unanimously affirmed, with costs.
In this Court's February 10, 2017 decision ( 147 A.D.3d 482, 47 N.Y.S.3d 277 ), late fees in the amount of 18% simple interest were granted to plaintiffs in lieu of, not in addition to, statutory 9% interest (see Morningside Fuel Corp. v. Lanius, 244 A.D.2d 198, 664 N.Y.S.2d 30 [1st Dept. 1997] ). "A prior decision on an appeal constitutes law of the case and is conclusive on subsequent appeals, except in extraordinary circumstances" ( Feinberg v. Boros, 99 A.D.3d 219, 235, 951 N.Y.S.2d 110 [1st Dept. 2012, Moskowitz, J., concurring], lv denied 21 N.Y.3d 851, 2013 WL 1299736 [2013] ). This Court's prior decision, therefore, constitutes law of the case, and was duly applied by Supreme Court in determining the amount due to plaintiffs up to the date of defendants' tender pursuant to CPLR 3219. As defendants' tender was in excess of the amount awarded to plaintiffs, the accrual of interest was tolled as of that date, which Supreme Court properly calculated. As noted in this Court's prior decision and in Supreme Court's order, the 18% simple interest was imposed in lieu of the statutory interest. As such, it took the place thereof, and interest tolling pursuant to CPLR 3219 is warranted.
We have considered plaintiffs' remaining arguments and find them unavailing.