Schantz v. O'Sullivan

Appeal from an order of the Supreme Court (Teresi, J.), entered December 30, 2003 in Albany County, which granted defendant Jean F. O’Sullivan’s motion to dismiss the complaint. The underlying facts of this matter are fully set forth in our three prior decisions involving this action (11 AD3d 22 [2004], lv dismissed 3 NY3d 767 [2004]; 302 AD2d 793 [2003]; 288 AD2d 536 [2001]). During the pendency of the last appeal, defendant Jean F. O’Sullivan obtained Supreme Court orders vacating the judgment of foreclosure and sale, and dismissing the complaint. Supreme Court evidently relied on its prior determination that chapter 71 of the Laws of 2002 barred this foreclosure action in dismissing the complaint. This Court has since reversed that determination, however, concluding that chapter 71 is unconstitutional as applied to plaintiff (11 AD3d 22 [2004], supra). Our holding constitutes law of the case and, thus, upon plaintiff’s appeal from the order dismissing the complaint, reversal is required (see e.g. Bennett v Nardone, 298 AD2d 790, 791 [2002], lv dismissed 99 NY2d 579 [2003]). Mercure, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is reversed, on the law and the facts, without costs, and motion denied.