“It is well established that “ [a] denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at the trial’ ” (Wyoming County Bank v Ackerman, 286 AD2d 884). Nevertheless, “[i]f the facts at [trial] are substantially the same as those presented in the prior appeal, the trial court must adhere to this [C]ourt’s determination of the controverted questions of law” (Bolm v Triumph Corp., 71 AD2d 429, 434, lv dismissed 50 NY2d 801, 928). Because we concluded in the prior appeal that there is a triable issue of fact whether the letter signed by defendant’s [*2]president restarted the statute of limitations (Caleb, 19 AD3d 1090; see General Obligations Law § 17-101), the court was bound by the doctrine of law of the case to submit that issue to the jury.”
If an appellate court makes a finding that a certain fact or issue has been established and not rebutted on appeal, then the Fourth Department is of the view that it is improper for a trial court to a force a trial on that issue. Six words and an ampersand: (1) prima (2) facie (3) case & (4) timely (5) mailed (6) denial. I refuse to decipher the Morse code.
Since this is the only Fourth Department from the April series of decisions that I will be posting, I am going to add a thought that is completely unrelated to the post. Take a look at the cases that the Fourth Department decided on April 30, 2010. This would be the second section of cases – the first are the appellate motions. You will see – and I am not kidding you – that about 30% of the cases have dissents. Of those 30%, at least 40-50% have two Justice dissents, which allows a final judgment to be taken to the Court of Appeals as of right. This is unprecedented. I have been opining for months that there are an inordinately large number of dissents up in our Rochester Appellate Court. But I have never in my life have seen anything from an appellate court in New York, like what I saw in the April 30, 2010 batch of cases.
By the way, the most interesting case that came out on April 30, 2010 was this case entitled Progressive Halcyon Ins. Co. v Giacometti, 2010 NY Slip Op 03544 (4th Dept. 2010). It involved an issue as to whether the presumption of “permissive use” has been rebutted due to a “backseat driver” sitting in the front passenger seat, who jerks the steering wheel and causes an accident. Although completely unrelated to no-fault, this is a 4-1 decision you must read.
