Bellevue South Associates v. HRH Construction Corp.

184 A.D.2d 221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1992
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Carol Huff, J.), entered February 20, 1992, which, after a retrial on remand by the Court of Appeals, dismissed all of the claims of the third-party plaintiff-appellant against the third-party defendant-respondent, unanimously affirmed, with costs.

The retrial herein came about as a result of a determination by the Court of Appeals (78 NY2d 282, 297-299) that there was a triable issue as to whether or not the third-party plaintiff was barred by its own conduct from asserting that the third-party defendant was bound by implied warranties. Even if the doctrine of judicial estoppel (see, e.g., Kalikow 78/79 Co. v State of New York, 174 AD2d 7), were to be invoked, there is nothing inconsistent between the third-party defendant’s earlier position and its present argument that it and the third-party plaintiff engaged in a course of conduct manifesting a mutual understanding that there were no implied warranties of merchantability (see, Zicari v Harris Co., 33 AD2d 17, 21, Iv denied 26 NY2d 610). This is particularly so where the subject product was developed solely and specifically for use by the third-party plaintiff in a process into which the third-party plaintiff had substantial participation. It was precisely this issue that was to be retried (78 NY2d, supra, at 298), such that there is no violation of the doctrine of law of the case (see, Martin v City of Cohoes, 37 NY2d 162). We are unpersuaded that the jury could not have reached the verdict it did by any rational process (see, Bernstein v Berman, 39 AD2d 525).

We have considered the third-party plaintiffs other arguments and find them to be without merit. Concur — Milonas, J. P., Rosenberger, Wallach and Ross, JJ.