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Prior Ruling on Appeal is Law of the Case for Both Trial and Appellate Courts

In a case which resulted in a second appeal, defendant contested the validity of a board meeting in both the first and second appeal.  The First Department, in a full-fledged opinion by Justice Renwick, explained that the ruling in the first appeal was binding both on the trial court and the appellate court as the “law of the case: “

An 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 re-examination of the question absent a showing of subsequent evidence or change of law”… .  Board of Mgrs. … v Seligson, 2013 NY Slip Op 01926, 1st Dept. 3-21-13

 

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THE JURY WAS NOT INSTRUCTED THAT ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE LESSER COUNT; ALTHOUGH DEFENSE COUNSEL DID NOT OBJECT TO THE JURY INSTRUCTIONS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).
IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​
ARBITRABLE CLAIMS WHICH ARE INEXTRICABLY TIED TO CLAIMS ALREADY IN COURT SHOULD BE LITIGATED IN COURT.
TEACHER ACQUIRED TENURE BY ESTOPPEL (FIRST DEPT).
THE PARTIES HAD ALREADY STIPULATED TO RESTORE THE ACTION TO THE CALENDAR; THE JUDGE SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO VACATE THE DISMISSAL OF THE ACTION FOR FAILURE TO APPEAR AT CONFERENCES OR OUTLINE REMAINING DISCOVERY (FIRST DEPT).
THEORIES OF LIABILITY NOT FAIRLY IMPLIED FROM THE NOTICE OF CLAIM CAN NOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS.
FIVE HOUR BREAK SUFFICIENT TO DISSIPATE EFFECT OF THE MIRANDA VIOLATION.
PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

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