Politi v. Irvmab Realty Corp.

13 A.D.2d 469, 212 N.Y.S.2d 444

Opinion

Judgment in favor of plaintiff for $100,000, with costs, unanimously reversed, on the law and on the facts, the verdict vacated, and a new trial granted, with costs to defendant-appellant, on the ground that the verdict was contrary to the credible evidence. The testimony given on behalf of plaintiff in this personal injury action, which was unfavorably characterized by this court on a prior appeal (7 AD 2d 414), was not improved upon in the present trial, although it obviously was modified to avoid earlier indications of weakness. If the testimony then taxed credulity, the variations in such testimony have not added to its probable verity. On the prior appeal this court, however, impliedly held that plaintiff had established a prima facie case, since it ordered a new trial solely on the ground that the verdict was against the weight of the credible evidence. The present court does not feel free to consider the otherwise cogent arguments made by defendant, that the complaint should be dismissed as a matter of law, because of the doctrine of the law of the case. Although not an absolute mandate on the court, the doctrine is one that rests in a sound policy not to be ignored except in extraordinary circumstances (Hornstein V. Podwitz, 229 App. Div. 167, 169; but see limiting affirmance 254 N. Y. 443, 450; Williams v. Board of Trustee, 210 App. Div. 161, 162; see, also, Barcelo v. Horn & Hardart Co., 11 A D 2d 651; 5B C. J. S., Appeal and Error, §§ 1821-1824, 1964, generally, and especially at subd. c, par. [3]-, [p. 567] and subd. d [p. 570]; Note: Conelusiveness of Prior Decisions on Subsequent Appeals, 34 L. R. A. 321). Concur — Breitel, J. P., Rabin, Stevens, Eager and Steuer, JJ.