Smyczynskiv.Genesis Marketing Group of America, Inc.

Appellate Division of the Supreme Court of New York, Fourth DepartmentJul 14, 1992
185 A.D.2d 658 (N.Y. App. Div. 1992)

July 14, 1992

Appeal from the Supreme County Court, Erie County, Fallon, J.

Present — Green, J.P., Lawton, Boehm, Davis and Doerr, JJ.

Order unanimously reversed on the law with costs, motion granted and cross motion denied. Memorandum: Supreme Court improperly granted defendants' cross motion for an order compelling arbitration. That court had previously considered the propriety of arbitration and, in its order of June 25, 1991, denied defendants' motion to dismiss the complaint and order arbitration. Defendants' application was denied "in all respects", and the court directed defendants to serve their answer to enable the litigation to proceed. Defendants did not appeal. Because defendants refused to comply with plaintiff's subsequent discovery demands, plaintiff was obliged to move to compel discovery and was met with defendants' cross motion, again seeking arbitration. Notwithstanding its earlier order denying the request for the same relief, Supreme Court granted defendants' cross motion. We reverse. Supreme Court's order denying defendants' request for arbitration and directing defendants to file an answer constituted the law of the case and is final and binding upon the parties (see, Siegel, N Y Prac § 448 [2d ed]; see also, Matter of Reilly v. Reid, 45 N.Y.2d 24; George W. Collins, Inc. v. Olsker-McClain Indus., 22 A.D.2d 485). Defendants' cross motion was merely a renewed attempt to obtain the same relief earlier denied by Supreme Court.

Because defendants failed to show why plaintiff's omnibus discovery demands should not be met, we reverse the order denying his motion to compel discovery, and grant the same.