The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, and 60 were read on this motion to RESTORE (& CROSS-MOTION). DECISION + ORDER ON MOTION upon the foregoing documents, and after argument, it is ORDERED that the defendants’ motion to restore their prior cross-motion to dismiss “for a determination on the merits of the balance of the cross-motion” (Notice of Motion [NYSCEF Doc. No. 49] [emphasis added]) is denied for the reasons set forth in the opposition papers (NYSCEF Doc. No. 54-56), and in which the court concurs. As set forth more specifically in said papers, the Honorable Alan C. Marin, a justice of this court (now retired), had granted defendants’ cross-motion to dismiss on the sole ground that the action was time-barred (NYSCEF Doc. No. 51). Plaintiff then appealed that decision and on February 3, 2022, the Appellate Division, First Department, reversed that decision and reinstated the complaint (NYSCEF Doc. No. 52). Notably, though, the Appellate Division did not direct or otherwise mandate that this court should now proceed to consider those grounds of defendants’ cross-motion to dismiss that were not relied upon by Justice Marin in his prior decision and appeal. The Appellate Division simply ordered that the complaint be reinstated. In this regard, Dupont Realty, LLC v. Garcia (73 Misc 3d 128 [App Term 1st Dept 2021]), which is cited by defendants, does not support defendants’ position. In that case, unlike in the present instance, the appellate forum (in that case, the Appellate Term) specifically remanded the undecided portion of the motion under appeal for further proceedings by the lower court (in that case, Civil Court). As it stated: “Civil Court did not reach the balance of petitioner-landlord’s motion seeking summary judgment, and we remand the matter to Civil Court for such determination” (id. at 128 [emphasis added]). By contrast, the appellate decision in the instant matter (NYSCEF Doc. No. 52), rendered by the Appellate Division, First Department, contains no such mandate or direction, and that procedural posture is binding on this court (see, Matter of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966 [2d Dept 2005]). AND IT IS further ORDERED that plaintiff’s cross-motion for sanctions pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) §130-1.1 is denied, as plaintiff fails to demonstrate the necessary type of conduct by defendants to warrant such relief; and it is further ORDERED that counsel shall appear for a preliminary conference in Room 1166, 111 Centre Street, New York, New York on March 22, 2023, at 2:00 PM. This constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 3, 2023
