Tremco, Inc. v. Turk

170 A.D.2d 987

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinions

Order insofar as appealed from modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint herein. Contrary to defendants’ argument, Supreme Court’s decision denying plaintiff’s motion for a preliminary injunction does not constitute the law of the case (see, Preston Corp. v Fabrication Enters., 68 NY2d 397, 402; Walker Mem. Baptist Church v Saunders, 285 NY 462, 474; Siegel, NY Prac § 448) and thus does not provide the predicate to establish defendants’ entitlement to summary judgment. Defendants otherwise failed to proffer evidentiary proof in admissible form "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

However, Supreme Court did not err in denying plaintiff’s cross motion for summary judgment on its first cause of action seeking liquidated damages. Issues of fact exist whether the "amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” (Truck Rent-A-Center v Puritan Farms 2nd, 41 NY2d 420, 425).

All concur, except Doerr, J. P., who dissents in part and votes to affirm, in the following Memorandum.