BACKGROUND
On May 14, 2008, defendant, Luigi Rosabianca entered into an agreement with plaintiff, Emigrant Savings Bank, to borrow $1.76 million. The agreement was secured by a mortgage on a property at 55 Wall Street in Manhattan. The mortgage between Rosabianca and Emigrant was recorded in April 2012. Emigrant Bank is the successor-by-merger to Emigrant Savings Bank.
In August 2011, co-defendant Little Bay gave Rosabianca a mortgage secured by the Wall Street property. Co-defendant Secured Lending Corp. LLC (SLC) is Little Bays successor-in-interest.
In March 2014, Emigrant sued both Rosabianca and SLC. Emigrant sued Rosabianca to foreclose the 55 Wall Street property. Emigrant sued SLC for equitable subrogation to elevate Emigrants lien to priority status. (NYSCEF No. 1.)
In May 2014, SLC answered Emigrants equitable-subrogation complaint. SLC asserted two affirmative defenses against Emigrant: (1) SLC alleged that Emigrant could not demonstrate to SLC or this court that SLC could have had actual or constructive notice of the facts alleged by Emigrant, such that SLCs lien should take priority over Emigrants; and (2) that Emigrant had unclean hands. SLC counterclaimed against Emigrant for fraud and collusion and cross-claimed against Rosabianca for fraud and collusion. (NYSCEF No. 19 at ¶ 2.)
In November 2021, this court dismissed SLCs affirmative defenses, counterclaim, and cross-claim. (NYSCEF No. 865 [order memorializing oral decision delivered on the record]; NYSCEF No. 897 at Tr. 14-20 [transcript of decision].) Later that month, this court vacated SLCs first and second set of interrogatories and granted Emigrants protective order. (NYSCEF No. 876 [order memorializing oral decision delivered on the record]; NYSCEF No. 898 at Tr. 23-25 [transcript of decision].)
In November 2022, the Appellate Division, First Department, reversed this courts decision dismissing SLCs affirmative defense to Emigrants equitable-subrogation claim. (See Emigrant Bank v Rosabianca, 210 AD3d 527, 527 [1st Dept 2022].) The First Department found that SLCs affirmative defense sufficiently stated a defense based on the priority of SLCs lien. (Id.)
After the Appellate Division reinstated SLCs affirmative defense, SLC, in December 2022, sent Emigrant a letter requesting that Emigrant respond to SLCs first and second sets of interrogatories. (NYSCEF No. 959.) In March 2023, Emigrant sent SLC a letter stating that Emigrant was not required to respond to SLCs request. Emigrant referred SLC to this courts order to vacate the first and second set of interrogatories. (NYSCEF No. 960.) Later in March 2023, SLC responded to Emigrants letter. SLC withdrew its first and second sets of interrogatories and served a third set of interrogatories. (NYSCEF No. 961.)
SLC now moves to compel Emigrant to respond to SLCs third set of interrogatories. SLCs motion to compel is denied.
DISCUSSION
Emigrant argues that the issues relating to SLCs third set of interrogatories have already been litigated, as the third set of interrogatories is nearly identical to SLCs first and second sets of interrogatories that this court previously vacated. (NYSCEF No. 953 at ¶ 21.) Emigrant contends that the law-of-the-case doctrine bars SLCs third set of interrogatories. (NYSCEF No. 953 at ¶ 20.) In the alternative, Emigrant argues that if the law-of-the-case doctrine does not apply to SLCs third set of interrogatories, then SLCs third set should be stricken as burdensome and irrelevant. (NYSCEF No. 953 at ¶ 25.)
SLCs third set of interrogatories seeks nearly the same information it sought in its vacated first and second sets of interrogatories. (NYSCEF No. 954 [comparison of all interrogatories].) Indeed, in seeking a response from Emigrant to the third set of interrogatories, SLC made clear that it intended its third set of interrogatories to be nearly identical to its first and second sets. (See NYSCEF No. 946 [“[SLC]’s first and second sets of interrogatories were properly re-served․ [SLC] has no wish to expend its own resources and waste this Courts time when [SLC] can simply serve a new set of interrogatories․”].)
Ordinarily, the law-of-the-case doctrine would inhibit SLC from bringing its third set of interrogatories after this court vacated them. But this court procedurally vacated SLCs first and second sets on the ground that SLCs affirmative defenses, counterclaim, and cross-claim were dismissed. (NYSCEF No. 898 at 25 [transcript of decision].) In these circumstances, SLCs third set of interrogatories are not barred as a matter of law of the case. (See e.g. J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [finding that the law-of-the-case doctrine applies only when a court makes a decision on its merits, not on procedure].)
SLC contends that the First Departments reversal of this courts dismissal of SLCs first affirmative defense allows SLC to re-serve its first and second sets of interrogatories in their entirety. (NYSCEF No. 950 at 5; 961.) SLC is correct that the First Departments reversal re-opens discovery—but only within the scope of SLCs lone surviving affirmative defense. (See Smile Train, Inc. v Ferris Consulting Corp., 117 AD3d 629, 631 [1st Dept 2014] [finding that a party is not entitled to discovery relating to dismissed claims]; Cathers v Barnes, 8 AD3d 215, 215 [1st Dept 2004] [finding that the court properly limited defendants discovery to what was related only to defendants affirmative defense].) SLCs third set of interrogatories asks a substantial number of questions that relate to SLCs dismissed unclean-hands affirmative defense, and the dismissed fraud/collusion counterclaim. Indeed, as SLC copied or merely reworded its first and second sets of interrogatories and labeled it as its third set of interrogatories. (See NYSCEF No. 957 at 6-8 [SLCs third set of interrogatories].)
Emigrant is correct, therefore, in contending that SLCs third set of interrogatories is largely irrelevant. And to the extent that some of SLCs interrogatories in its third set might be relevant to its surviving affirmative defense, it is not the job of the court to prune through SLCs third set to determine what may be proper. (See e.g. Fox v Roman Catholic Archdiocese of NY, 202 AD3d 1061, 1062 [2d Dept 2022]; Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249, 250 [1st Dept 1996].)
Accordingly, it is
ORDERED that SLCs motion to compel is denied; and it is further
ORDERED that Emigrant and SLC appear before this court for a telephonic status conference on August 5, 2024.
Gerald Lebovits, J.