Globe Indem. Co. v. Franklin Paving Co.

• Decision Date: 14 July 1980
• Citation: 430 N.Y.S.2d 109,77 A.D.2d 581
• Parties: GLOBE INDEMNITY COMPANY, Appellant, v. FRANKLIN PAVING COMPANY, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 109

430 N.Y.S.2d 109

77 A.D.2d 581

GLOBE INDEMNITY COMPANY, Appellant, v. FRANKLIN PAVING COMPANY, Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

July 14, 1980.

Corcoran, Amabile & Cowin, Brooklyn (Paul M. DeCarlo, Brooklyn, of counsel), for appellant.

Di Tucci & De Berardine, P. C., Brooklyn (Roger B. De Berardine, Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, GIBBONS and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia to declare that the plaintiff insurer is not obligated to defend or indemnify defendant Franklin Paving Company in an action brought against it by defendants Feiger, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated May 28, 1979, which adjudged, inter alia, that the order of Mr. Justice BECKINELLA, dated April 28, 1976, is "valid and subsisting" and that said order established the law of the case "and is now res judicata."

Judgment modified, on the law, by deleting therefrom subdivision "3" of the decretal paragraph and substituting therefor a provision that the plaintiff is required to defend and indemnify the defendant Franklin Paving Company, up to the policy limits, with respect to the negligence cause of action asserted by the defendants Feiger against the Franklin Paving Company upon the theory that said company had negligently completed a paving operation. As so modified, judgment affirmed, with $50 costs and disbursements to respondent.

The trial court erred in determining that the prior order of Mr. Justice BECKINELLA, dated April 28, 1976, had established the "law of the case" and that the matter was therefore res judicata. Said order, which merely denied a motion by counsel retained by the plaintiff insurance company to withdraw as attorneys for the defendant Franklin Paving Company, clearly did not purport to determine the sole issue presented here, i. e., the validity of plaintiff's disclaimer of liability predicated on noncoverage (see Feiger v. Waldbaum's Super Markets, Supreme Ct., Kings County, Sept. 22, 1975, memorandum decision of BECKINELLA, J.; see also, Brothers v. Burt, 27 N.Y.2d 905, 317 N.Y.S.2d 626, 265 N.E.2d 922; Presley v. Williams, 57 A.D.2d 947, 395 N.Y.S.2d 92). It is well established that the doctrine of the "law of the case" applies only where there has been a final determination of a particular controversy on the merits (see, generally, Siegel, N.Y.Prac., § 443 et seq.). Moreover, even if applicable to Trial Term here, said doctrine is inapplicable on this appeal to render an erroneous determination binding, since this precept affects only courts of co-ordinate jurisdiction (see Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867; Todd Equip. Leasing Co. v. Pierce Trading Corp., 63 A.D.2d 1018, 406 N.Y.S.2d 137; 10 Carmody-Wait 2d, N.Y.Prac., § 70:406). Finally, although Trial Term failed (because of the nature of its determination) to consider the instant action on its merits, we may do so now in the first instance on appeal in view of the fact that this declaratory judgment action was submitted to Trial Term upon an agreed statement of facts in lieu of trial and may be determined as a matter of law (cf. CPLR 3222; Bernardine v. City of New York, 294 N.Y. 361, 366-367, 62 N.E.2d 604).

Upon consideration of...