| Caleb v Sevenson Envtl. Servs., Inc. |
| 2010 NY Slip Op 03551 [72 AD3d 1517] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Brent C. Caleb et al., Appellants, v Sevenson EnvironmentalServices, Inc., Respondent. |
—[*1] Magavern Magavern Grimm LLP, Niagara Falls (Edward P. Perlman of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Orleans County(James H. Dillon, J.), entered December 23, 2008 in a breach of contract action. The order andjudgment granted defendant's motion for a directed verdict and dismissed the amendedcomplaint.
It is hereby ordered that the order and judgment so appealed from is unanimously reversedon the law without costs, the motion is denied, the amended complaint is reinstated, and a newtrial is granted.
Memorandum: Plaintiffs commenced this action seeking, inter alia, damages for breach of acontract pursuant to which defendants were to construct a pond on plaintiffs' property. On a priorappeal, this Court affirmed the order denying defendant's motion for summary judgmentdismissing the complaint as time-barred. We held that defendant "failed to establish itsentitlement to judgment dismissing the complaint as time-barred as a matter of law because thereare issues of fact when construction was completed . . . and, indeed, whether it wascompleted. There is also an issue of fact whether a letter signed by defendant's presidentacknowledging the obligation of defendant to complete work under the contract had the effect of'restarting the statute of limitations' " (Caleb v Sevenson Envtl. Servs., Inc., 19 AD3d 1090, 1091[2005]). A jury trial was held, and defendant moved for a directed verdict at the close ofplaintiffs' case. We conclude that Supreme Court erred in granting the motion and in dismissingthe amended complaint as time-barred.
It is well established that " '[a] denial of a motion for summary judgment is not necessarilyres judicata or the law of the case that there is an issue of fact in the case that will beestablished at the trial' " (Wyoming County Bank v Ackerman, 286 AD2d 884 [2001]).Nevertheless, "[i]f the facts at [trial] are substantially the same as those presented in the priorappeal, the trial court must adhere to this [C]ourt's determination of the controverted questions oflaw" (Bolm v Triumph Corp., 71 AD2d 429, 434 [1979], lv dismissed 50 NY2d801, 928 [1980]). Because we concluded in the prior appeal that there is a triable issue of factwhether the letter signed by defendant's [*2]president restartedthe statute of limitations (Caleb, 19 AD3d 1090 [2005]; see General ObligationsLaw § 17-101), the court was bound by the doctrine of law of the case to submit that issueto the jury. Moreover, despite the expanded record in this appeal, there are triable issues of factwith respect to whether construction was completed and, if so, when it was completed (seeCity of Rochester v Holmsten Ice Rinks, 155 AD2d 939 [1989]). Present—Smith,J.P., Fahey, Carni, Sconiers and Pine, JJ.