You are here: / / Alternative Holding in Prior Appeal Did Not Have Preclusive Effect
,

Alternative Holding in Prior Appeal Did Not Have Preclusive Effect

In a case involving a contract of sale for a painting (for 2 million euros), the First Department noted that a prior decision of that same court which stated the standing issue was not preserved for appellate review, and that if the issue were to be considered it would be rejected, was not binding for res judicata/collateral estoppel purposes:

[Defendant] was not barred by either res judicata or collateral estoppel from arguing the issue of standing in his motion to vacate the July 8, 2009 order. In particular, this Court’s holding on the prior appeal in this case (79 AD3d 534) cannot be considered binding for collateral estoppel purposes because this Court’s initial holding as to the issue of standing was that it had not been preserved for review. It was only as an alternate holding that this Court stated that the standing argument, if it were to be considered, would be rejected … .  Van Damme v Gelber, 2013 NY Slip Op 01782, 601995/07, 590203/08, 9553B, 1st Dept. 3-19-13

 

 

You might also like
HEATING AGREEMENT WAS A COVENANT WHICH RUNS WITH THE LAND, ORAL WAIVER MAY BE VALID DESPITE WRITING REQUIREMENT IN THE COVENANT.
Although the Agreements at Issue Set Up an Investment Fund (Targeting Brazil) in the Cayman Islands, the Fact that the Agreements Were Negotiated, Drafted and Executed in New York Conferred Personal Jurisdiction Over the Defendant Fund
PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT).
FAILURE TO TELL THE JURY TO STOP DELIBERATING IF THEY FIND THE JUSTIFICATION DEFENSE APPLIES REQUIRED REVERSAL, EVEN THOUGH THE JUDGE TOLD THE JURY TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIES (FIRST DEPT).
Failure to Make Timely Objections to Invoices Justified Summary Judgment
SUPREME COURT SHOULD NOT HAVE REMOVED THE INCAPACITATED PERSON’S (IP’S) SON AS GUARDIAN OF THE PROPERTY WITHOUT HOLDING A TESTIMONIAL HEARING, CRITERIA FOR REMOVAL EXPLAINED (FIRST DEPT).
QUESTION OF FACT WHETHER THE LESSEE OF THE PROPERTY WAS AN OWNER OR AGENT OF THE OWNER FOR LABOR LAW PURPOSES, PROPERTY MANAGER WAS NOT LIABLE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM PLAINTIFF’S FALL FROM A ROOF (FIRST DEPT).
MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Elements of Defamation, Invasion of Privacy and Intentional Infliction of Emotional... Amendment of Reply to Add Statute of Limitations Defense Allowed