Weiss v. Flushing Nat. Bank
| Decision Date | 15 October 1991 |
| Citation | 176 A.D.2d 797,575 N.Y.S.2d 126 |
| Parties | Leonard WEISS, et al., Appellants, v. FLUSHING NATIONAL BANK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
David M. Richman, New York City, for appellants.
Shea & Gould, New York City (Fran M. Jacobs, of counsel), for respondent.
Before MANGANO, P.J., and THOMPSON, BRACKEN and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to recover the proceeds of a certificate of deposit, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roberto, J.), entered January 12, 1989, which granted the defendant's renewed motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In Weiss v. Flushing Nat. Bank (102 A.D.2d 890, 477 N.Y.S.2d 61), this court ruled that the defendant had the right to apply the plaintiffs' deposits to reduce the debts that their father had guaranteed. This ruling is the law of the case, and the matter may not be relitigated on this appeal (see, 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., p 5011.09, at 50-97; Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867; Holloway v. Cha Cha Laundry, 97 A.D.2d 385, 386, 467 N.Y.S.2d 834). The plaintiffs have made no showing of any "extraordinary circumstances", "such as a change in the law or a showing of new evidence affecting the prior determination", so as to vitiate the doctrine of the "law of the case" (Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528). At bar, there has been no change in the law. The plaintiffs' contention that the production of the same hypothecation agreements which were considered by this court on the prior appeal--although now with the date "7/11/78" visible--constitutes "new evidence" is frivolous. In any event, it does not matter when the hypothecation agreements were executed, because on their face they pledge the plaintiffs' deposits as collateral for "any and all loans now or hereafter made" to the father and to secure payment of "any direct or indirect liability * * * due or to become due, or that may hereafter be contracted" by the father.
"While it is true that a [renewed motion] generally should be based on newly discovered facts, this rule is not inflexible, and the court has discretion to grant renewal even upon facts known to the movant at the time of the original motion" (Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 866, 453 N.Y.S.2d 247, citing Weinstein v....
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