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Posted: November 14, 2017

Successor Judge Should Have Adhered to Prior Judge’s Holdings Under Law of Case Doctrine

On November 9, 2017, the First Department issued a decision in Glaze Teriyaki, LLC v. MacArthur Properties I, LLC, 2017 NY Slip Op. 07770, holding that it was error for a successor judge not to adhere to a prior judge’s holdings under the law of the case doctrine, explaining:

Despite its earlier ruling that Justice Bransten’s orders were the law of the case and that the only issue at trial was whether the Code violation had been cured, the trial court issued an order after trial, entered June 1, 2016, that found that defendant had failed to establish any violation of the Code, determined that the notice of cancellation was null and void, and enjoined defendant from terminating the lease based upon the notice. The court dismissed defendant’s first, second, third and sixth counterclaims, and referred the remaining counterclaims to a special referee to determine the amount of outstanding rent and/or use and occupancy and other charges owed. Defendant now appeals from that order.

The law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case. Here, the trial court was prohibited from finding that plaintiff’s commercial kitchen exhaust system did not violate the Mechanical Code. The trial court adopted the earlier finding by Justice Bransten, referenced in the February 18, 2014 order, when it held that her orders were the law of the case, and limited the issue at trial as set forth above.

Plaintiff was afforded a full and fair opportunity to litigate this issue before Justice Bransten, and was offered the opportunity, if it wished, to schedule cross-examination of defendant’s expert. It did not do so, and essentially conceded the existence of the Code violation when its counsel responded, Fair enough, to the court’s directive on December 17, 2013 that the violation be cured at plaintiff’s expense.

(Internal quotations and citations omitted).

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