Kenney v. City of New York

74 A.D.3d 630, 903 N.Y.S.2d 53

Opinion

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered February 11, 2009, which, in an action for personal injuries sustained in a trip and fall on stairs, granted the motions of defendants Excel Industries and the City of New York to renew their prior motions for summary judgment dismissing the complaint and all cross claims as against them, previously denied by order, same court and Justice, entered May 24, 2004, and, upon renewal, dismissed the complaint, unanimously affirmed, without costs.

In a previous appeal by codefendant Dynatech Industries (30 AD3d 261 [2006]), we concluded, as an alternative holding, that “[e]ven were Dynatech connected to Excel Industries, which was the basis of the IAS court’s denial of Dynatech’s dismissal motion, the motion should have been granted, because plaintiffs access to the courthouse step handrails was not blocked. She testified that she walked diagonally up the steps but she could have chosen to walk on the outside of the blocked handrails, where the walkway was unobstructed” (id. at 262).

“An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . [and] operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law” (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809 [2007] [internal quotation marks and citations omitted]; see Martin v City of Cohoes, 37 NY2d 162 [1975]). Accordingly, based upon our prior determination, the motion court properly dismissed the complaint as against Excel and the City.

We have considered plaintiffs remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Andrias, Catterson, Renwick and Manzanet-Daniels, JJ. [Prior Case History: 22 Misc 3d 1133(A), 2009 NY Slip Op 50410(U).]