Holloway v. Cha Cha Laundry, Inc., ELECTROLUX-WASCATOR

• Decision Date: 20 October 1983
• Docket Number: ELECTROLUX-WASCATOR
• Parties: Laura HOLLOWAY, etc., et al., Plaintiffs, v. CHA CHA LAUNDRY, INC. et al., Defendants, and Bermil Industries Corp., Defendant-Appellant, and Coronavernken Aktiebolaget, CTC., Defendant-Respondent. CHA CHA LAUNDRY, INC., Third-Party Plaintiff, v. UNDERWRITERS LABS, INC., Third-Party Defendant. BERMIL INDUSTRIES CORP., Fourth-Party Plaintiff, v.A.B. et al., Fourth-Party Defendants.
• Court: New York Supreme Court — Appellate Division

Page 834

467 N.Y.S.2d 834

97 A.D.2d 385

Laura HOLLOWAY, etc., et al., Plaintiffs, v. CHA CHA LAUNDRY, INC. et al., Defendants, and Bermil Industries Corp., Defendant-Appellant,

and

Coronavernken Aktiebolaget, CTC., Defendant-Respondent.

CHA CHA LAUNDRY, INC., Third-Party Plaintiff, v. UNDERWRITERS LABS, INC., Third-Party Defendant.

BERMIL INDUSTRIES CORP., Fourth-Party Plaintiff, v. ELECTROLUX-WASCATOR A.B. et al., Fourth-Party Defendants.

Supreme Court, Appellate Division First Department.

Oct. 20, 1983.

B.M. Hoffman, New York City, for defendant-appellant.

G.D. Ferrer, New York City, for defendant-respondent.

Before KUPFERMAN, J.P., and SANDLER, FEIN, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered July 7, 1982, denying a motion by defendant Bermil Industries Corp. ("Bermil") to compel co-defendant Coronavernken Aktiebolaget, CTC ("CTC") to appear for oral deposition, unanimously reversed, on the law and the facts and in the exercise of discretion, with costs, and the motion is granted directing CTC to submit to examination before trial, on a date to be agreed upon by the parties.

The infant plaintiff was allegedly injured at a laundromat while using a washing machine sold and serviced by defendant Super Pak Co. Inc. to defendant Cha Cha Laundry, Inc., the owner and operator of the premises. Neither of these defendants is a party to this appeal. The machine was manufactured in Sweden by defendant CTC, and imported by defendant Bermil.

CTC opposes the effort to compel it to submit to examination before trial, upon the ground that it had sold its washing machine division in 1973 and presently has neither any relevant records in its possession nor any employees under its control with knowledge of the washing machine division. Previously, in granting plaintiff's motion to compel all parties to submit to examination in June 1981, Justice Kent denied a cross motion by CTC to avoid submitting to examination. However, CTC was the only party failing to submit to examination as directed.

In contrast to the 1981 order, the order appealed from was made on a motion by one defendant, Bermil, to compel examination of CTC, the one remaining defendant. The 1981 order established law of the case on the issue of whether CTC should submit to oral deposition. The "law of the case" doctrine is a rule of practice which provides that once an issue is judicially determined, either directly or by implication, it is not to be reconsidered by judges or courts of coordinate jurisdiction in the course of the same litigation (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867; Metropolitan Package Store Association, Inc. et al. v. Koch, 89 A.D.2d 317, 321-322, 457 N.Y.S.2d 481). Of course, a question may be reconsidered if new evidence has come to light since the initial ruling ( Mtr. of Yeampierre v. Gutman, 57 A.D.2d 898, 899, 394 N.Y.S.2d 450). That does not appear to be the case here.

A review of the record reveals two developments since the 1981 order. First is...