Hutchings v. Yuter

• Citation: 969 N.Y.S.2d 447,2013 N.Y. Slip Op. 04988,108 A.D.3d 416
• Parties: Leonard W. HUTCHINGS, et al., Plaintiffs–Respondents, v. Morton G. YUTER, et al., Defendants–Appellants.
• Decision Date: 02 July 2013
• Court: New York Supreme Court Appellate Division

108 A.D.3d 416
969 N.Y.S.2d 447
2013 N.Y. Slip Op. 04988

Leonard W. HUTCHINGS, et al., Plaintiffs–Respondents,
v.
Morton G. YUTER, et al., Defendants–Appellants.

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

July 2, 2013.

[969 N.Y.S.2d 448]

Pillinger Miller & Tarallo, LLP, Elmsford (Adam T. Newman of counsel), for Morton G. Yuter and Ten Seventy One Home Corp., appellants.

Henderson & Brennan, White Plains (Lauren J. DeMase of counsel), for Josh Neustein, appellant.

Law Offices Of Daniel Chavez, Bronx (Elizabeth Mark Meyerson of counsel), for respondents.

FRIEDMAN, J.P., SWEENY, DeGRASSE, RICHTER, FEINMAN, JJ.

[108 A.D.3d 416]Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered May 15, 2012, which denied defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In denying defendants' motions, the motion court did not violate the doctrine of law of the case ( see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975] ). In a prior order, decided by a different judge who was not available to hear the motions at issue, the IAS court granted defendant Neustein's motion for summary judgment to the extent of striking the negligence claim against him, but also determined that plaintiff could proceed against him at trial on the theory of res ipsa loquitur. In the order now on review, the motion court properly clarified that the prior order necessarily implied that a cause of action for negligence remained against Neustein, since “without a cause of action for negligence there is no viable cause of action to [108 A.D.3d 417]which to apply the doctrine of res ipsa loquitur” ( Ianotta v. Tishman Speyer Props., Inc., 46 A.D.3d 297, 299, 852 N.Y.S.2d 27 [1st Dept. 2007] ). In any event, this Court, in reviewing the motion court's order, is not bound by law of the case ( see Grullon v. City of New York, 297 A.D.2d 261, 265, 747 N.Y.S.2d 426 [1st Dept. 2002] ), and we find that the motion court's clarification of the prior order was correct.

The doctrine of collateral estoppel is inapplicable, since the issue of Neustein's negligence based on the doctrine of res ipsa loquitur was never decided in the prior action ( see Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ). Further, the issue of defendants Yuter's and Ten Seventy's negligence was not before the court in the prior action, as they were not parties in...