O'Buckley v. Cnty. of Chemung

• Decision Date: 05 July 2018
• Docket Number: 525810
• Citation: 76 N.Y.S.3d 428 (Mem)
• Parties: Sharron L. O'BUCKLEY, Individually and as Administrator of the Estate of Michael O'Buckley, Deceased, Appellant, v. COUNTY OF CHEMUNG et al., Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1129
76 N.Y.S.3d 428 (Mem)

Sharron L. O'BUCKLEY, Individually and as Administrator of the Estate of Michael O'Buckley, Deceased, Appellant,
v.
COUNTY OF CHEMUNG et al., Respondents.

525810

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 8, 2018
Decided and Entered: July 5, 2018

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]...