• Trial Court Cannot Vacate Its Own Order After Appellate Division Modified or Affirmed It: Gutman v A to Z Holding Corp.
  • February 11, 2013 | Author: Aaron E. Zerykier
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a December 7, 2012 decision by Justice Schmidt the court held that it did not have the inherent authority to vacate its own decision after that decision had been reviewed and affirmed or modified by the Appellate Division.  The litigation was one of many between two different business partners.  In 2002 the court issued a conditional preclusion order, providing that, among other things, if the plaintiff failed to appear for his deposition his complaint and reply to defendants’ counterclaims would be struck.  The court later struck plaintiff’s pleadings for failure to comply with the conditional order and precluded plaintiff from submitting certain evidence in opposition to defendants’ counterclaims.  Plaintiff then moved to renew and attributed the discovery failures to his prior counsel.  The court granted the motion to renew, and vacated its prior determination striking plaintiff’s pleadings on the condition that he pay defendants $5,000.

    Defendants appealed the court’s decision vacating the order striking plaintiff’s pleadings.  On appeal, the Appellate Division deleted portions of the order striking plaintiff’s pleadings adhering to the trial court’s prior order striking plaintiff’s pleadings (but did not reinstate the order of preclusion).  Plaintiff then moved before the trial court, asking that the trial court (again) vacate its original order striking plaintiff’s pleadings in the interest of justice so that the suit could be considered on its merits.

    The trial court found that while it has the inherent power to vacate its own judgment, it could no longer do so once the appellate court modified or affirmed such a judgment.  The court, nevertheless, determined that it was not required to “misconstrue the directive of the Appellate Division” which did not reinstate the order of preclusion, rather, only struck plaintiff’s reply to defendants’ counterclaims.  The court further found that the striking of the reply to counterclaims was not dispositive on the merits so as to entitle one of the defendants summary judgment in a related (but separate) action he brought against plaintiff.

    Gutman v A to Z Holding Corp, Sup Ct, Kings County, December 7, 2012, Schmidt J, Index No. 50105/99.