Max E. Greenberg, Cantor, Trager & Toplitz v. Goddard & Blum , 635 N.Y.S.2d 580 ( 1995 )

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered March 31, 1995, which awarded damages against defendant Goddard & Blum in favor of plaintiff in the principal sum of $65,538.70 and in favor of defendant St. Paul Fire & Marine Insurance Co. in the principal sum of $378,191,52, and stayed execution thereof pending the resolution of the proceeding in Federal court entitled Servidone Constr. Corp. v Barr (ND NY Civ Action No. 91-CV-1170 [NPM]), unanimously affirmed, without costs.

As this Court has already determined, Goddard & Blum is liable to plaintiff pursuant to the withdrawal agreement and subsequent correspondence (195 AD2d 393). This is the law of the case and cannot now be relitigated by defendants (see, Holloway v Cha Cha Laundry, 97 AD2d 385). We also note that there is no basis to disturb the Referee’s calculations of sums owed to plaintiff and plaintiff’s assignee, defendant St. Paul, pursuant to the withdrawal agreement. While defendants-appellants argue that the awarded damages should be set off by certain legal fees that plaintiff allegedly owes them in connection with two other cases, these setoffs were not within the scope of the remand directed by this Court’s prior order or the IAS Court’s order of reference. In any event, defendants-appellants have failed to adequately demonstrate that a setoff is warranted. We also conclude prejudgment interest, as calculated by the Referee, was appropriate under the circumstances (CPLR 5001; see, Brownie’s Army & Navy Store v E. J. Burke, Jr., Inc., 72 AD2d 171, 174).

As there is sufficient evidence in the record to warrant the stay of execution of the instant judgment pending a resolution of the Federal court proceeding, we decline to vacate such stay.

We have considered the parties’ other claims for affirmative relief and find them to be without merit. Concur — Sullivan, J. P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.