| Stern v Charter Oak Fire Ins. Co. |
| 2009 NY Slip Op 00729 [59 AD3d 930] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Vivian Stern, Doing Business as The Jeweler, Appellant, v TheCharter Oak Fire Insurance Company, Respondent, et al.,Defendants. |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, ofcounsel), for defendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered May 6, 2008 in a breach of contract action. The order, inter alia, denied that part of themotion of plaintiff for leave to renew her opposition to the motion of defendant The Charter OakFire Insurance Company to dismiss plaintiff's claim for consequential damages.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion of plaintiff for leave to renew her opposition to the motion ofdefendant The Charter Oak Fire Insurance Company and, upon renewal, denying the motion ofthat defendant and reinstating the claim for consequential damages and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this action alleging that defendants breached the termsof the insurance policy issued to her by failing, inter alia, to pay certain claims for losses arisingfrom an armed robbery at plaintiff's jewelry store. On a prior appeal, we affirmed an order that,inter alia, granted the motion of defendant The Charter Oak Fire Insurance Company (CharterOak) to dismiss plaintiff's claim for consequential damages (Stern v Charter Oak Fire Ins. Co., 38 AD3d 1288 [2007]). Wecited, inter alia, Bi-Economy Mkt., Inc.v Harleysville Ins. Co. of N.Y. (37 AD3d 1184 [2007]) in concluding that "[t]heinsurance policy at issue expressly excludes coverage for the consequential damages claimed byplaintiff" (Stern, 38 AD3d 1288 [2007]).
Following our decision in the prior appeal, the Court of Appeals reversed the order inBi-Economy Mkt., Inc., concluding under circumstances similar to those present in thiscase that a contractual exclusion for consequential losses in the insurance policy issued to theplaintiff business did not bar its claim for consequential damages caused by the defendantinsurer's alleged breach of the terms of the policy (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d187, 194-196 [2008]; see PanasiaEstates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203 [2008]).
While the instant action remained pending, plaintiff moved, inter alia, for leave to renew[*2]her opposition to Charter Oak's motion to dismiss her claimfor consequential damages, based upon the decisions of the Court of Appeals in Bi-EconomyMkt., Inc. and Panasia Estates, Inc. Supreme Court erred in denying that part ofplaintiff's motion for leave to renew with respect to consequential damages based upon thedoctrine of law of the case and instead should have granted leave to renew and, upon renewal,denied Charter Oak's motion. "[A] court of original jurisdiction may entertain a motion to renewor [to] vacate a prior order or judgment even after an appellate court has rendered a decision onthat order or judgment" (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d374, 377 [2001]). Furthermore, we conclude that, because "the analysis employed by this [C]ourtin the prior appeal no longer reflects the current state of the law, the doctrine of law of the caseshould not be invoked to preclude reconsideration of" Charter Oak's motion to dismiss plaintiff'sclaim for compensatory damages (Szajna v Rand, 131 AD2d 840, 840 [1987]; seeFoley v Roche, 86 AD2d 887 [1982], lv denied 56 NY2d 507 [1982]). We thereforemodify the order accordingly. Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski,JJ.