Edgewater Construction Co. v. 81 & 3 of Watertown, Inc.Edgewater Construction Co. v. 81 & 3 of Watertown, Inc.
Memorandum: Plaintiff, Edgewater Construction Co., Inc. (Edgewater), commenced this action seeking to recover the cost of rebuilding a foundation wall during the construction of a Sam‘s Wholesale Club for Wal-Mart Stores, Inc. (Wal-Mart). Dе
During the nonjury trial on the action, Edgewater entered into a stipulation with 81 & 3, Ripper, Cipolla, Bella Vista and defendant Innovаtive Realty, Inc. (collectively, defendants). That stipulation provided in pertinent part that “the amount of the trust fund received by [81 & 3] аs trustee on or about September 1, 1994 from the sale of the Sam‘s Club project at Watertown, New York . . . is the sum of $739,152.34. That said, defendants аnd/or others may be liable to the plaintiff for the amount that the Court may find as due plaintiff in this action to the extent said defendants or others received all or part of the said trust funds” (emphasis added).
Plaintiff was awarded judgment on both causes of action, and Supreme Court granted judgment against defendants, jointly and severally. On the appeal from that judgment, we determined, inter alia, that the court properly found that 81 & 3 breached the contract with Edgewater. We modified the judgment, however, by reversing the judgment against Innovаtive Realty, Inc., and by vacating the award of damages against Ripper and Bella Vista on the second cause of action on the ground that the court “never made any findings with respect to the exact amount of the trust funds those defendants wrongfully received” (Edgewater Constr. Co. v 81 & 3 of Watertown [appeal No. 2], 1 AD3d 1054, 1058 [2003]). We remitted the matter to Supreme Court for further findings “with respect to the amount of trust funds those defendants wrongfully received and to grant judgment accordingly against them” (id.). Ripper appeals and Edgewater cross-appeals from the amended judgment entered upon remittal, which, inter alia, awarded Edgewater judgment against Ripper but found no liability on the part of Bella Vista.
Contrary to the contention of Ripper, the stipulation did not limit her liability to funds she “actually received.” Where, as here, a stipulatiоn is entered into the record pursuant to
We likewise reject the contention of Edgewater that the court erred in limiting its recovery to thе funds received by any of the defendants after September 1, 1994. Pursuant to the explicit terms of the stipulation, the res of the stipulated trust fund was $739,152.34, which was received on or about September 1, 1994. Liability for each defendant was predicated on the amount each defendant received from the “said trust funds.” Inasmuch as defendants could not have received any of the said trust funds before they became a part of the trust on September 1, 1994, we conclude that the court properly considered only amounts transferred to the various defendants on or after that date.
Edgewater further contends that the court ignored a second stipulatiоn that would have expanded the res of the trust. Although that “second stipulation” is not in the record presently before us, we may take judicial notice of the record in the prior appeal (see Devine v Melton, 170 App Div 280, 282 [1915]). The record in the prior appeal establishes that thе second stipulation to which Edgewater refers concerned the admission of various exhibits in evidence at trial. Indeed, the stipulation explicitly disavowed any acknowledgment that the exhibits established a trust claim or that any sum was due to Edgewater.
Finally, Edgewater contends that the statement in our decision in the prior appeal that the evidence established that Bella Vista rеceived wrongfully diverted trust funds constitutes the law of the case and thus precludes the court‘s finding in the amended judgment on appeal herein that Bella Vista did not receive any of the stipulated trust funds. We reject that contention. The doctrine of the law of thе case applies only to issues that have been judicially determined (see generally Martin v City of Cohoes, 37 NY2d 162, 165 [1975], rearg denied 37 NY2d 817 [1975]). We determined in the prior appeal that the evidence admitted at trial established that Bella Vista received wrongfully diverted funds from the