Opinion
525810
07-05-2018
Sharron L. O'BUCKLEY, Individually and as Administrator of the Estate of Michael O'Buckley, Deceased, Appellant, v. COUNTY OF CHEMUNG et al., Respondents.
Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of counsel), for appellant. Barclay Damon LLP, Elmira (Matthew J. Rosno of counsel), for County of Chemung, respondent. Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Town of Southport, respondent.
Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of counsel), for appellant.
Barclay Damon LLP, Elmira (Matthew J. Rosno of counsel), for County of Chemung, respondent.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Town of Southport, respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Pritzker, JJ.
MEMORANDUM AND ORDER
Lynch, J.
Appeal from an order of the Supreme Court (O'Shea, J.), entered July 26, 2017 in Chemung County, which denied plaintiff's motion in limine.
This matter comes before us for a fourth time ( 149 A.D.3d 1232, 53 N.Y.S.3d 209 [2017] ; 112 A.D.3d 1190, 977 N.Y.S.2d 477 [2013] ; 88 A.D.3d 1140, 931 N.Y.S.2d 717 [2011] ). In our most recent decision, we affirmed that part of an order of Supreme Court which, after granting a mistrial, precluded plaintiff from offering evidence of prior accidents in a second trial ( 149 A.D.3d at 1234–1235, 53 N.Y.S.3d 209 ). Thereafter, plaintiff again moved to admit evidence of prior similar accidents or, in the alternative, for a hearing on the application. Supreme Court denied the motion, effectively concluding that our prior decision constitutes law of the case. Plaintiff now appeals.
We reverse. The underlying motion in limine speaks to an evidentiary ruling and the law of the case doctrine generally speaks to questions of law, not discretionary rulings of the court (see Kennedy v. Children's Hosp. of Buffalo, 303 A.D.2d 937, 938, 757 N.Y.S.2d 396 [2003] ; Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284 [2002] ). That said, we are mindful that " ‘[a]n 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 reexamination of [the] question absent a showing of subsequent evidence or change of law’ " ( Kenney v. City of New York, 74 A.D.3d 630, 630–631, 903 N.Y.S.2d 53 [2010], quoting J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 [2007] ; see Carmona v. Mathisson, 92 A.D.3d 492, 493, 938 N.Y.S.2d 300 [2012] ).
Although defendants contend otherwise, our previous decision was not a definitive ruling as to whether the conditions underlying the prior accidents that plaintiff seeks to admit were substantially similar to the accident at issue. To the contrary, we simply determined that the limited offer of proof that plaintiff then made was inadequate ( 149 A.D.3d at 1235, 53 N.Y.S.3d 209 ). As such, the subject motion should have been addressed on the merits (see e.g. Peri Formwork Sys., Inc. v. Lumbermens Mut. Cas. Co., 112 A.D.3d 171, 177–178, 975 N.Y.S.2d 422 [2013], lv denied 23 N.Y.3d 907, 2014 WL 2922291 [2014] ).
ORDERED that the order is reversed, on the law, with costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this court's decision.
McCarthy, J.P., Egan Jr., Clark and Pritzker, JJ., concur.