Kowalski Enterprises, Inc. v. Sem International L. L. C.

In an action, inter alia, to recover on a promissory note and a guarantee, the defendants appeal from an order of the Supreme Court, Kings County (Held, J.), dated September 14, 1999, which granted the plaintiffs’ motion for summary judgment dismissing the first and second counterclaims alleging fraud and breach of contract, respectively, and denied those branches of their cross motion which were for leave to replead and/or amend their counterclaims and to compel the plaintiffs to appear for depositions. Ordered that the order is affirmed, with costs. The Supreme Court properly dismissed the defendants’ counterclaims alleging fraud and breach of contract, as those counterclaims were based on the same allegations which were previously found by this Court to be unsubstantiated (see, Kowalski Enters. v Sem Intl., 250 AD2d 648). That determination is the law of the case (see, Matter of Morrison, 273 AD2d 475; Darema-Rogers v Rogers, 268 AD2d 455). [372] The Supreme Court providently exercised its discretion in denying that branch of the defendants’ cross motion which was for leave to amend their counterclaims (see, Carranza v Brooklyn Union Gas Co., 233 AD2d 287). The defendants’ remaining contentions are without merit. O’Brien, J. P., Santucci, H. Miller and Schmidt, JJ., concur.