| Roddy v Nederlander Producing Co. of Am., Inc. |
| 2010 NY Slip Op 04261 [73 AD3d 583] |
| May 20, 2010 |
| Appellate Division, First Department |
| Pat Roddy, Appellant, v Nederlander Producing Companyof America, Inc., et al., Respondents, et al. Defendants. (And a Third-PartyAction.) |
—[*1]
Order, Supreme Court, New York County (Louis B. York, J.), entered December 10, 2008,which denied renewal and reargument of a prior order, same court and Justice, entered on orabout July 22, 2008, granting defendants-respondents' motion to dismiss the complaint and allcross claims as against them, and adhered to the original decision, unanimously affirmed,without costs. Appeal from the July 22, 2008 order unanimously dismissed, without costs, assuperseded by the appeal from the order entered December 10, 2008. Appeal from an unfiledjudgment, same court and Justice, dated October 3, 2008, unanimously dismissed, without costs.
Plaintiff dancer commenced this action seeking damages for personal injuries against hisemployer, Abhann Productions, Inc. (Abhann), which was later dismissed as a defendant underthe Workers' Compensation Law, as well as against the owners of the theater, respondents TheGershwin Theater and Nederlander Producing Company of America, Inc. (collectivelyGershwin). According to the complaint, plaintiff was injured when, while performing, he fell"due to the slipperiness of the stage and the presence and formation of excess moisture and/orliquid upon the stage emanating from or otherwise caused by the dry ice machine being used. . . to create 'fog.' " In his bill of particulars, plaintiff similarly alleged that he wasinjured when he leapt and landed on a "portion of stage which had been rendered un-safe andslippery due to excessive liquid and moisture thereupon caused by the dry ice machine operatedby Defendants."[*2]
In Roddy v Nederlander Producing Co. of Am., Inc. (44 AD3d 556[2007] [Roddy I]), we granted conditional summary judgment to Gershwin on itscontractual indemnification claim against Abhann, finding that Gershwin established its primafacie case "by demonstrating, through deposition testimony and other evidence, that the foggermachines and floor that caused plaintiff's injury were under the exclusive control of Abhann, andthat Abhann had directed every aspect of the work through which plaintiff was injured." (Id.at 556.) We also found that "[i]n light of the unrebutted prima facie demonstration thatGershwin was not negligent in the occurrence of the accident, General Obligations Law §5-322.1 is inapplicable." (Id.) Based on this determination, Gershwin moved to dismissthe complaint under theories of res judicata, collateral estoppel and the law of the case.
As distinguished from issue preclusion and claim preclusion, the law of the case addressesthe potentially preclusive effect of judicial determinations made in the course of a singlelitigation before final judgment (see Matter of McGrath v Gold, 36 NY2d 406, 413[1975]), and is the applicable doctrine (see People v Evans, 94 NY2d 499, 502 [2000][res judicata and collateral estoppel "generally deal with preclusion after judgment," i.e., after aclaim or issue has been adjudicated "in a prior action"]). Under the doctrine, parties or theirprivies are "preclude[d from] relitigating an issue decided in an ongoing action where therepreviously was a full and fair opportunity to address the issue" (Town of Massena v HealthcareUnderwriters Mut. Ins. Co., 40 AD3d 1177, 1179 [2007]; see Matter of AtlanticMut. Ins. Co. v Lauria, 291 AD2d 492 [2002]). Absent a showing of subsequent evidence orchange of law, "[a]n appellate court's resolution of an issue on a prior appeal constitutes the lawof the case and is binding on the Supreme Court, as well as on the appellate court" (J-Mar Serv. Ctr., Inc. v Mahoney, Connor& Hussey, 45 AD3d 809, 809 [2007]; see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 51 AD3d 1002[2008], lv denied 11 NY3d 716 [2009]; Sharp v Stavisky, 242 AD2d 447 [1997],lv dismissed 91 NY2d 956 [1998]).
Here, plaintiff had a full and fair opportunity to address the issues decided adversely to hisinterests in Roddy I.
First, plaintiff was served with the indemnification motion. Although it is true that themoving papers state that the motion was addressed to Gershwin's indemnification claims againstAbhann, not to the dismissal of the complaint, the issue of Gershwin's negligence wasnevertheless apparent, with Gershwin citing the deposition testimony of both plaintiff and hiswife, who was an associate producer of the show, that plaintiff was injured when he slipped onmoisture that had been left on the floor of the stage by malfunctioning fog machines; that boththe machines and the portable floor on which plaintiff slipped were the property of and under theexclusive control of the producers, who had brought them in for this production; and that therehad been numerous complaints, of which the producers were aware, about recurring problemswith the machines and slippery conditions on the floor. If plaintiff was dissatisfied with theadequacy of Abhann's response to Gershwin's proof that Gershwin was not negligent, it wasincumbent on plaintiff to submit opposition to the motion sufficient to raise a material issue offact as to Gershwin's negligence. Yet, plaintiff never sought to participate in the indemnificationmotion, electing instead to sit on his hands despite his material interest in the determination as towhether Gershwin was negligent or not.
Second, when Gershwin appealed from the denial of the indemnification motion, plaintiffwas served with a notice of appeal, the record and the briefs and could have participated in theappeal as a respondent (CPLR 5511). Again, plaintiff elected not to participate, even though the[*3]issue of Gershwin's negligence was apparent from the recordand plaintiff had a material interest in the determination of that issue.
As the motion court observed, these circumstances demonstrate that plaintiff made a tacticalchoice not to participate in the underlying motion and in Roddy I, despite both noticeand a right to do so. Accordingly, plaintiff had a full and fair opportunity to litigate.
Contrary to plaintiff's arguments, our finding in Roddy I that Gershwin was notnegligent was not merely obiter dictum. In granting conditional indemnity, the issue ofGershwin's negligence was necessarily involved in a determination on the merits and became thelaw of the case (Scofield v Trustees of Union Coll., 288 AD2d 807 [2001]).
Nor has plaintiff presented competent subsequent evidence demonstrating Gershwin'snegligence. As stated above, both the complaint and bill of particulars attributed the cause of theaccident to moisture and liquid emanating from the dry ice machines. Plaintiff and his wifesimilarly testified at their depositions that water was coming from the smoke and dry icemachines. It was not until after a note of issue was filed and our decision in Roddy I thatplaintiff for the first time served his expert disclosure under CPLR 3101 (d) in support of thetheory that Gershwin was negligent in failing to properly operate the theater's air conditioningsystem. Plaintiff could not defeat Gershwin's motion by raising this new theory of liability (see People v Grasso, 54 AD3d180, 212-213 [2008]; Mathew vMishra, 41 AD3d 1230, 1231 [2007]).
Further, while annexing his CPLR 3101 (d) disclosure to his opposition to Gershwin'ssummary judgment motion, plaintiff did not produce an affidavit from the expert until he madehis motion to renew and reargue. Even if we were to consider that belated submission, theexpert's affidavit provided no empirical data to support the basis for his conclusions, which werespeculative, conclusory, and lacking in probative value (see Diaz v New York DowntownHosp. 99 NY2d 542 [2002]; Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 637-638[2005]). In particular, the expert provided no specific measurements of the temperature andhumidity level of the theater on the night of plaintiff's accident, or of the air conditioning andfogger settings. Moreover, there is no evidence of specific requests to Gershwin to increase ordecrease the air conditioning due to the use of the fog machine.
We have considered plaintiff's other arguments and they are unavailing.Concur—Andrias, J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.