White-Heller v. Oceanside Union Free School District

139 A.D.2d 576, 527 N.Y.S.2d 77, 1988 N.Y. App. Div. LEXIS 3911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1988
• Status: Published

Opinion

—In an action, inter alia, for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated June 11, 1987, which denied her motion for leave to amend her complaint so as to include a prayer for money damages against certain defendants.

Ordered that the order is affirmed, with costs.

The plaintiff proposes to amend her pleading so as "to clarify * * * for trial purposes” that she seeks money damages against certain defendants, notwithstanding that the only cause of action presently pending against them is couched in terms consistent with a claim for injunctive relief. While "[rjelief in the alternative or of several different types may be demanded” (CPLR 3017 [a]), the plaintiffs proposed amended pleading makes clear that the prayer for damages is premised entirely on a cause of action which was previously dismissed against these defendants by an order from which the plaintiff took no appeal. Although we are not bound by the "law of the case” doctrine as is the Supreme Court, Nassau County (see, e.g., Scott v Transkrit Corp., 91 AD2d 682), the propriety of the prior order is beyond the scope of this appeal (cf., CPLR 5501 [a] [1]; see, Jones v 30 Sutton Place Corp., 12 AD2d 455, affd 10 NY2d 771). The trial must be conducted within the framework allowed by the plaintiffs present pleading. Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur.