Martinez v. City of New York

299 A.D.2d 526, 750 N.Y.S.2d 526

Opinion

In a consolidated action to recover damages for personal injuries, the defendant Paddock Pool Equipment Company, Inc., appeals from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated February 7, 2002, as, upon renewal, adhered to a prior determination in an order dated October 6, 1999, denying that branch of its cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The prior decision and order of this Court dated October 30, 2000 (Martinez v City of New York, 276 AD2d 756), which affirmed the grant of summary judgment in favor of the defendant City of New York, did not bind the Supreme Court to also dismiss the complaint insofar as asserted against the appellant. Our determination that there was no basis for liability against the City was not “law of the case,” precluding the Supreme Court from considering whether the appellant was entitled to summary judgment, as we neither considered nor resolved the issue of the appellant’s liability for the plaintiffs injuries in the prior appeal (see Beltrone v General Schuyler & Co., 252 AD2d 640; Locilento v Coleman Catholic High School, 134 AD2d 39). Feuerstein, J.P., Smith, Goldstein and Luciano, JJ., concur.