THE ISSUE ON A PRIOR APPEAL WAS WHETHER THE MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED; THE ISSUE HERE IS WHETHER THE MOTION TO DISMISS THE COMPLAINT SHOULD BE GRANTED; THE ISSUES ARE DIFFERENT AND THE LAW OF THE CASE DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department determined a prior appeal in this matter did not trigger the law of the case doctrine:

… Supreme Court’s determination that certain causes of action should be dismissed pursuant to CPLR 3211(a) was not precluded by this Court’s determination on a prior appeal that similar causes of action were not palpably insufficient nor patently devoid of merit … . The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same question in the same case … . On the prior appeal, we determined only that the plaintiffs’ proposed amendments were not so palpably insufficient as to warrant denial of the plaintiffs’ motion to amend. On an ensuing motion to dismiss, however, the standard is whether the facts as alleged fit within any cognizable legal theory … . Katz v Hampton Hills Assoc. Gen. Partnership, 2020 NY Slip Op 04545, Second Dept 8-19-20