

Cara Assoc., L.L.C. v Milstein (2017 NY Slip Op 02885)





Cara Assoc., L.L.C. v Milstein


2017 NY Slip Op 02885


Decided on April 13, 2017


Appellate Division, First Department


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


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 13, 2017

Friedman, J.P., Richter, Mazzarelli, Feinman, Gische, JJ.


3693 651726/15

[*1]Cara Associates, L.L.C., et al., Plaintiffs-Respondents,
vHoward P. Milstein, et al., Defendants-Appellants.


Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler of counsel), for appellants.
Nixon Peabody LLP, New York (Adam B. Gilbert of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Jeffrey K. Oing, J.), entered May 6, 2016, which denied defendants' motion to dismiss the complaint, granted plaintiffs' application to convert defendants' dismissal motion to one for summary judgment and to conform the pleadings to the proof, granted plaintiffs' motion for summary judgment, and declared, inter alia, that plaintiffs had the authority to remove Howard P. Milstein from his partnership management position and appoint a new manager by majority vote, and that a majority vote of the partners had authorized Michael L. Nelson and Ivan G. Goodstein to assume management of the business of the partnerships, unanimously modified, on the law and the facts, to the extent of amending the judgment to strike the reference to this Court's April 12, 2016 order and to substitute a reference to this Court's June 30, 2016 order in place thereof, and otherwise affirmed, without costs.
Entry of the order and judgment was a ministerial act, and the dispositive order underlying the judgment, entered October 13, 2015, was previously reviewed by this Court upon defendants' appeal therefrom, and decided adversely to defendants (see 140 AD3d 657 [1st Dept 2016], lv dismissed 27 NY3d 1181 [2016]), rendering the instant appeal improper, as it is not taken from a nonfinal judgment or order (see CPLR 5501[a][1]; Miller v New York Univ., 104 AD3d 451 [1st Dept 2013]). The Court's prior resolution of the issues raised on this appeal constitutes law of the case (see Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P., 82 AD3d 550 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and defendants' time to seek reargument from the prior order of this Court has expired (see Rules of App Div, 1st Dept [22 NYCRR] § 600.14[a]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 13, 2017
CLERK


