Trial Court Can Not Deviate from Terms of Remittitur Imposed by Appellate Court

The Second Department determined Supreme Court did have the power to deviate from the terms of the remittitur issue pursuant to an earlier appeal.  The matter had been sent back for a determination of attorney’s fees:

” A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court'” … . Accordingly, an order or judgment entered on remittitur ” must conform strictly to the remittitur'” … . Thus, although an award of an attorney’s fee normally lies within the sound discretion of the Supreme Court …, in this case, the Supreme Court’s award must also be judged by its conformity to this Court’s decision and order deciding the prior appeal … .

In this Court’s prior decision and order, the Supreme Court was instructed to “calculat[e] . . . the award of an attorney’s fee and costs associated with litigating the cause of action alleging a violation of Labor Law § 741” … . However, a review of the record makes clear that the Supreme Court’s award encompassed work performed after the … dismissal of the cause of action alleging a violation of Labor Law § 741. Because all litigation after that date must perforce have related either to the cause of action alleging a violation of Labor Law § 740 or the defendants’ own motion for an award of an attorney’s fee and costs, the Supreme Court’s award exceeded the mandate of this Court’s remittitur … .  Tomo v Episcopal Health Servs Inc, 2013 NY Slip Op 08070, 2nd Dept 12-4-13