9.23 - B. Pretrial Motions And Law Of The Case Doctrine

• Jurisdiction: New York

b. Pretrial Motions and Law of the Case Doctrine

The law of the case doctrine adds yet another layer to the decision of whether to appeal an interlocutory judgment. This doctrine provides a powerful tool for litigators; however, the doctrine is often misunderstood.

The law of the case doctrine is somewhat like an intra-action res judicata. It “is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.”²¹²⁰ This doctrine applies to various stages of the same litigation, not to two different litigations, and its purpose is to avoid the retrial of issues already determined in the same case.²¹²¹

Manifestly, a trial court determination would have no binding force on appeal because the appellate court is not a coordinate court but a higher tribunal.²¹²² Obviously, an appellate division holding would have a binding force on a subsequent appellate division court. But the doctrine of the law of the case is not an absolute mandate, as a court may ignore it in extraordinary circumstances—such as when the law is changed or a showing of new evidence affects the prior determination—thereby vitiating the doctrine’s effectiveness as a rule fostering orderly convenience.²¹²³

The law of the case doctrine applies only with respect to parties to the earlier ruling²¹²⁴ and only when the issues sought to be raised are the same as those already disposed of by the prior ruling.²¹²⁵ Thus, consideration of an issue is not precluded if the prior ruling did not finally dispose of that issue on the merits.²¹²⁶

In Chan v. Sheppard,²¹²⁷ for example, the New York Housing Court stayed execution of an eviction warrant against the defendant tenants for the tenants’ failure to pay September and October 2001 rent. The court held that if the tenants paid the landlord in a timely fashion, the tenancy would be reinstated. The landlord did not appeal from or move to reargue the court’s order. Thereafter, the tenants moved to vacate the eviction warrant, claiming they had timely paid the landlord. Although the parties presented conflicting evidence concerning whether the tenants paid the October 2001 rent, the Kings County Civil Court said it would ignore the dispute with respect to the October 2001 rent because it found no good cause to vacate the eviction warrant.

The Appellate Term, Second Department reversed the civil court order and...