The motion court's 2017 decision denying Dinowitz's motion to dismiss Verdi's defamation claims and this Court's affirmance (Verdi,161 A.D.3d at 414) were based on the facts and law presented by the parties on the pleadings (see 191 Chrystie LLC v Ledoux, 82 A.D.3d 681, 682 [1st Dept 2011]). While the alleged defamatory statements have not changed since Dinowitz filed his motion to dismiss, the scope of review at summary judgment is distinct and the evidence regarding the context in which these statements were made has fully developed (see Riddick v City of New York, 4 A.D.3d 242, 245 [1st Dept 2004]; see also Bernard v Grenci, 48 A.D.3d 722, 724 [2d Dept 2008] [reversing denial of the defendant's motion for summary judgment on the grounds that the motion court incorrectly held the law of the case doctrine bound the court to the findings of its previous order, which partially denied the defendant's motion to dismiss]).
Further, the petitioner's contention that the Surrogate's Court erred by disregarding the law of the case in holding these three causes of action to be time-barred is without merit. The law of the case doctrine was inapplicable, because the subject pretrial orders, which were analyzed under different review standards and based upon a substantially more limited record, did not require the Surrogate's Court to disregard the extremely voluminous record developed at trial (see e.g.Borawski v. Abulafia, 140 A.D.3d 817, 818, 33 N.Y.S.3d 412 ; Bernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168 ). Moreover, the petitioner failed to prove all elements of the causes of action set forth in the amended petition by clear and convincing evidence at trial.
Further, the petitioner's contention that the Surrogate's Court erred by disregarding the law of the case in holding these three causes of action to be time-barred is without merit. The law of the case doctrine was inapplicable, because the subject pretrial orders, which were analyzed under different review standards and based upon a substantially more limited record, did not require the Surrogate's Court to disregard the extremely voluminous record developed at trial (see e.g. Borawski v Abulafia, 140 A.D.3d 817, 818; Bernard v Grenci, 48 A.D.3d 722, 724).
The plaintiff appeals. Initially, contrary to the plaintiff's contention, this Court's order on the prior appeal with respect to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint does not preclude the present motion pursuant to CPLR 3212 for summary judgment dismissing the complaint (seeBernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168 ; see alsoBeach v. Touradji Capital Mgt., LP, 128 A.D.3d 501, 502, 7 N.Y.S.3d 895 ).
Contrary to the plaintiff's contention, the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see Borawski v. Abulafia, 140 A.D.3d 817, 33 N.Y.S.3d 412 ; Bernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168 ; State of New York v. Barclays Bank of N.Y., 151 A.D.2d 19, 546 N.Y.S.2d 479, affd. 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 ). “ ‘The elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury
Contrary to the plaintiff's contention, the legal argument made by the defendants' counsel in support of a prior motion does not constitute a judicial admission (see Lipco Elec. Corp. v. ASG Consulting Corp., 117 A.D.3d 688, 689, 984 N.Y.S.2d 619 ; Naughton v. City of New York, 94 A.D.3d 1, 12, 940 N.Y.S.2d 21 ; Rahman v. Smith, 40 A.D.3d 613, 614–615, 835 N.Y.S.2d 404 ). Moreover, the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action (see 191 Chrystie LLC v. Ledoux, 82 A.D.3d 681, 682, 920 N.Y.S.2d 324 ; Bernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168 ; Thompson v. Lamprecht Transp., 39 A.D.3d 846, 847, 834 N.Y.S.2d 312 ; State of New York v. Barclays Bank of N.Y., 151 A.D.2d 19, 20–21, 546 N.Y.S.2d 479, affd. 76 N.Y.2d 533, 561 N.Y.S.2d 697, 563 N.E.2d 11 ). In any event, this Court is not bound by the prior determination of the Supreme Court (see Brown–Jodoin v. Pirrotti, 138 A.D.3d 661, 29 N.Y.S.3d 426 ; Debcon Fin. Servs., Inc. v. 83–17 Broadway Corp., 126 A.D.3d 752, 754, 5 N.Y.S.3d 478 ; Hothan v. Mercy Med. Ctr., 105 A.D.3d 905, 905, 963 N.Y.S.2d 322 ).
Freedom of expression upon public questions is secured by the First Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Accusations of the use of political influence to gain some benefit from government are not defamatory and do not constitute libel per se. Bernard v. Grenci, 48 A.D.3d 722, 853 N.Y.S.2d 168, 170 (N.Y.App.Div.2008); see also Lizotte v. Welker, 45 Conn.Supp. 217, 709 A.2d 50, 59 (1996) (considering whether newspaper articles suggesting a developer's contributions to a political committee positively influenced settlement of litigation resulting in approval of his residential development application, could constitute libel by raising an inference of “bribery”, court held the statements “contributions to slush funds,” “part of the fix,” “secret, illegal and corrupt deals,” “payoffs,” “blatant coverup attempt” and “maneuvers with political and corrupt implications” were examples of rhetorical hyperbole), aff'd,244 Conn. 156, 709 A.2d 1 (1998). The Texas Supreme Court has recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on” public figures.
The Cervoni defendants failed to establish their prima facie entitlement to judgment as a matter of law, as they, too, merely pointed to gaps in the plaintiffs' proof instead of “affirmatively demonstrat[ing] the merit of [their] ... defense” ( Velasquez v. Gomez, 44 A.D.3d at 651, 843 N.Y.S.2d 368 [internal quotation marks omitted]; see Fotiou v. Goodman, 74 A.D.3d at 1141, 905 N.Y.S.2d 626;see also Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). However, as the Cervoni defendants correctly contend, neither the law of the case doctrine nor the doctrine of governmental immunity precludes them from asserting their defenses at trial ( see Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 177 n. 2, 495 N.Y.S.2d 927, 486 N.E.2d 785,cert. denied476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655;Bernard v. Grenci, 48 A.D.3d 722, 724, 853 N.Y.S.2d 168;Sterngass v. Town Bd. of Town of Clarkstown, 43 A.D.3d 1037, 1037, 841 N.Y.S.2d 453;Hampton Val. Farms, Inc. v. Flower & Medalie, 40 A.D.3d 699, 701, 835 N.Y.S.2d 678;Brownrigg v. New York City Hous. Auth., 29 A.D.3d 721, 722, 815 N.Y.S.2d 681;State of New York v. Trustees of Freeholders & Commonalty of Town of Southampton, 99 A.D.2d 804, 805, 472 N.Y.S.2d 394).
(2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to `signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact'" ( Gross v New York Times Co., 82 NY2d at 153, quoting Steinhilber v Alphonse, 68 NY2d 283, 292). A "statement of opinion that is accompanied by a recitation of the facts on which it is based or one that does not imply the existence of undisclosed underlying facts" is not actionable as defamation ( Gross v New York Times Co., 82 NY2d at 153-154). The defendants in action No. 2 made a prima facie showing of entitlement to judgment as a matter of law ( see Alvarez v Prospect Hosp., 68 NY2d 320, 325) by proffering evidence sufficient to establish, as a matter of law, that their alleged statements constituted statements of opinion, and not of fact ( see Bernard v Grenci, 48 AD3d 722, 723; Miness v Alter, 262 AD2d 374; Ferris v Loyal Order of Moose Oneonta Lodge No. 465, 259 AD2d 914, 915; cf. Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 1164). In opposition, the plaintiff in action No. 2 failed to raise a triable issue of fact.
As indicated, the City DOH has been dismissed from this proceeding by the prior order. Where, as here, the equivalent of a summary judgment motion follows a motion to dismiss, the doctrine of law of the case stemming from the prior order is inapplicable, inasmuch as the scope of review applicable to each motion is distinct (see Bernard v Grenci, 48 A.D.3d 722, 724 [2d Dept 2008] [collecting authorities]). It bears noting that the vaccine mandate of Section 2.61 remains in effect to date, although the State DOH has not been enforcing it prospectively.