Cherry v. Koch

• Decision Date: 17 June 1985
• Citation: 129 Misc.2d 346,491 N.Y.S.2d 934
• Parties: Fred CHERRY & Margo St. James, Petitioners, v. Edward KOCH, in his official capacity as Mayor of the City of New York; Elizabeth Holtzman, in her official capacity as District Attorney for the County of Kings; and Benjamin Ward, in his capacity as Police Commissioner of the City of New York, Respondents.
• Court: New York Supreme Court

Page 934

491 N.Y.S.2d 934

129 Misc.2d 346

Fred CHERRY & Margo St. James, Petitioners, v. Edward KOCH, in his official capacity as Mayor of the City

of New York; Elizabeth Holtzman, in her official capacity

as District Attorney for the County of Kings; and Benjamin

Ward, in his capacity as Police Commissioner of the City of

New York, Respondents.

Supreme Court, Special Term,

Kings County, Part I.

June 17, 1985.

Ronald L. Kuby, from the office of William M. Kunstler, New York City, for petitioner.

MEMORANDUM

GERALD ADLER, Justice.

Petitioners, a prostitute (Margo St. James) and a patron (Fred Cherry) seek a judgment declaring sections 230.00 and 230.03 of the Penal Law unconstitutional. These statutes prohibit prostitution and patronizing a prostitute.

This action was commenced on June 20, 1984. Respondents Koch and Ward moved to dismiss on the ground that Petitioners lacked standing. Respondent Holtzman moved to dismiss on the same ground and also that the complaint failed to state a cause of action. On October 22, 1984 the complaint was dismissed by Justice Hirsch for failure to state a cause of action with leave to replead. On November 5, 1984 Petitioner filed an amended complaint and all the Respondents moved to dismiss on the same grounds alleged by Holtzman after the first complaint was filed. On December 30, 1984 Petitioners filed a cross motion for summary judgment. Before deciding these motions, the Court must first determine whether any of the prior rulings in Justice Hirsch's decision are "LAW OF THE CASE".

In Fioranelli v. News Bldg., 102 Misc.2d 825, 827, 424 N.Y.S.2d 677, the Court stated:

"The 'Law of the Case' doctrine is a kind of introaction res judicata. Within the framework of a single action it prevents relitigation of a point already adjudicated in it."

The doctrine is limited to questions of law and is frequently applied as a matter of judicial discretion (5 Weinstein-Korn-Miller, N.Y. Civil Practice, § 5011.09, p. 50-76; see also McGrath v. Gold, 36 N.Y.2d 406, 369 N.Y.S.2d 62, 330 N.E.2d 35; Fadden v. Cambridge Mutual Fire Ins. Co., 51 Misc.2d 858, 274 N.Y.S.2d 235, aff'd. 27 A.D.2d 487, 280 N.Y.S.2d 209; New York Practice, David D. Siegel § 448 Law of the Case, pp. 593-595; 1 Carmody-Wait 2d N.Y.Prac., § 2.64 pp. 76-78, 21 C.J.S. Courts § 195 pp. 330-334) ¹ The purposes behind this rule are varied but include judicial economy, comity (Walker v. Gerli, 257 App.Div. 249, 12 N.Y.S.2d 942) and avoidance of judge shopping (Kerekes v. Greenwood, 18 Misc.2d 84, 186 N.Y.S.2d 90). These interests must be balanced against other policies and the interest in equal justice (Matter of Shapiro v. Ehrenpreis, 108 Misc.2d 495, 498, 437 N.Y.S.2d 618). Thus, while it is often stated that if a judge's decision on a point of law is clear, such decision is binding on another judge of co-ordinate jurisdiction, this rule is not absolute and has limits (5 Weinstein-Korn-Miller, Civil Practice, § 5011.09, p. 50-76,supra ).

These limits are usually expressed in terms of exceptions to the rule and judicial discretion in application. Thus, where factors and circumstances vitiate the purpose behind the rule, there is little or no logic in following the "Law of the Case" (Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528). The rule has not been applied where the prior decision was not on the merits (Burke v. Axelrod, 90 A.D.2d 577, 456 N.Y.S.2d 135; Globe Indemnity Co. v. Franklin Paving Co., 77 A.D.2d 581, 430 N.Y.S.2d 109); or the prior decision resulted from an ex parte application (People v. Guerra, 65 N.Y.2d 60, 63, 489 N.Y.S.2d 718, 478 N.E.2d 1319; People v. Carson, 99 A.D.2d 664, 472 N.Y.S.2d 68); or where new evidence is before the Court (Holloway v. Cha Cha Laundry, etc., 97 A.D.2d 385, 386, 467 N.Y.S.2d 834; Matter of Yeampierre v. Gutman, 57 A.D.2d 898, 899, 394 N.Y.S.2d 450); or if the previous decision was discretionary Additionally, it is well established that application of "Law of the Case" is a matter of judicial discretion and not a limitation on the Court's power (Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152; Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 760, lv appl C/A denied 50 N.Y.2d 803, 431 N.Y.S.2d 1026, 409 N.E.2d 1004; see also People v. Leone, 44 N.Y.2d 315, 320, 405 N.Y.S.2d 642, 376 N.E.2d 1287 conc. opn. J. Fuchsberg; Matter of Rose, 109 Misc.2d 960, 966-967, 441 N.Y.S.2d 161; Sommer v. Lenoir/Hickory Knitting Mills, 126 Misc.2d 255, 258, 481 N.Y.S.2d 973. "In the absence of statute the phrase, law of the case, .... merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power (citations omitted) (Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152, supra ). ³ Such power, however, should be used sparingly. In Matter of Wright v. Monroe, 45 A.D.2d 932, 357 N.Y.S.2d 330, while conceding discretion exists in application of Law of the Case," the Appellate Division Fourth Department held it was an abuse of discretion for a successor judge to overrule the prior ruling of the judge he replaced. In support of such finding the Court noted that an appeal was available if the parties disagreed with the retired judge's ruling. Further, the Court also noted that "a considerable period of time elapsed between the order and the expiration of the retiring Judge's term without application to him for reargument." (Matter of Wright v. Monroe, 45 A.D.2d 932, 357 N.Y.S.2d 330 supra; see also Parker v. Rogerson, 33 A.D.2d 284, 290-291, 307 N.Y.S.2d 986, app. dsmd. 26 N.Y.2d 964, 311 N.Y.S.2d 7, 259 N.E.2d 479).

(People v. Wright, 104 Misc.2d 911, 915, 429 N.Y.S.2d 993); or there exists extraordinary circumstances (Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528, supra ); or if the prior decision is patently erroneous (People v. Negron, 105 Misc.2d 492, 493, 432 N.Y.S.2d 348); or where application of the doctrine would be counter-productive (Wilson v. McCarthy, 53 A.D.2d 860, 861, 385 N.Y.S.2d 581); or where a prior decision was made solely on motion papers and thereafter a full plenary hearing is conducted (People v. Mason, 97 Misc.2d 706, 712, 411 N.Y.S.2d 970); or where a temporary order was issued (Haber v. Haber, 20 A.D.2d 858, 248 N.Y.S.2d 83). ²

The "Law of the Case" doctrine applies to "various stages of the same action or proceeding" (New York Practice, David D. Siegel § 448 p. 593). It is thus important to determine if filing of the amended complaint constituted a new or the same action. In Kaplan v. Ginsburg, Inc., 14 Misc.2d 356, 358, 178 N.Y.S.2d 25, modified 8 A.D.2d 726, 186 N.Y.S.2d 707, the Court stated:

"It is well established that when an amended pleading is served, it takes the place of the original pleading and the action proceeds as though the original pleading had never been served. Such original pleading, under the circumstances, forms no part of the record and does not set forth issues which are involved (citations omitted)".

In Mendez v. Goroff, 25 Misc.2d 1013, 203 N.Y.S.2d 568, aff'd. 13 A.D.2d 705, 214 N.Y.S.2d 580, appl. withdrawn 12 N.Y.2d 842, 236 N.Y.S.2d 619, 187 N.E.2d 471, the Court considered whether a prior determination by another judge of plaintiff's status as a licensee or invitee was binding on the Court, where the original action had been dismissed for a failure to state a cause of action. The Court said that an amended complaint:

"... must be considered de novo and the previous determination with respect to the plaintiff's status does not constitute the law of the case" Mendez v. Goroff On the other hand in Kerekes v. Greenwood Properties, 18 Misc.2d 84, 85, 186 N.Y.S.2d 90 the Court considered whether a prior determination by another justice on the issue of statute of limitation was the law of the case after the original complaint had been dismissed for failure to state a cause of action. Then Justice John F. Scileppi held that while law of the case was not applicable to the sufficiency of the amended complaint, it was applicable to the ruling concerning the alleged statute of limitations violation. "Otherwise, one Special Term would be placed in the anomalous position of reviewing the prior order of another Special Term." (Platt v. New York & Sea Beach Ry. Co., 170 N.Y. 451, 458, 63 N.E. 532; Walker v. Gerli, 257 App.Div. 249, 251, 12 N.Y.S.2d 942) (Kerekes v. Greenwood Properties, 18 Misc.2d 84, 85, 186 N.Y.S.2d 90, supra ). In Matter of Arietta et al. v. State Board of Equalization and Assessment et al, 80 A.D.2d 956, 957-958, 438 N.Y.S.2d 13 aff'd. 56 N.Y.2d 356, 452 N.Y.S.2d 364, 437 N.E.2d 1121, the Appellate Division Third Department applied the doctrine of law of the case to a ruling on justiciability that it had made thirteen years earlier in a different but related action, on the basis that the different actions were essentially the same action.

25 Misc.2d 1013, 1014, 203 N.Y.S.2d 568, supra.

This Court believes that the doctrine of the Law of the Case is applicable to rulings made on the merits and unrelated to the pleadings. Such a rule prevents judge shopping and avoids re-litigation of issues already decided. In the instant case, except for the sufficiency of the amended pleading, the action remains the same and even retains the same index number.

After careful analysis of the prior decision and application of the above criteria, this Court finds the prior ruling that Petitioners possess standing and present a justiciable controversy to be "Law of the Case". ⁴ "Law of the Case" is not applicable, however, to the issue of whether a declaratory judgment is available in the instant case. Although such remedy was discussed in the prior ruling (within the context of standing and whether a justiciable controversy was presented), the propriety of a declaratory judgment in the instant case was never decided. In fact, leave to replead was specifically granted so that Petitioners could amplify the factual basis...