Opinion
No. 236 SSM 60.
Decided December 21, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 20, 2010. The Appellate Division affirmed an order of the Supreme Court, New York County (Louis B. York, J.), which had (1) denied renewal and reargument of a prior order of that court granting defendants' motion to dismiss the complaint and all cross claims as against them, and (2) adhered to its original decision.
Plaintiff dancer commenced this action seeking damages for personal injuries against his employer, Abhann Productions, Inc., which was later dismissed as a defendant under the Workers' Compensation Law, as well as against the owners of the theater, defendants The Gershwin Theatre and Nederlander Producing Company of America, Inc. (collectively Gershwin). 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/or liquid upon the stage emanating from or otherwise caused by the dry ice machine being used . . . to create `fog.`" In Roddy v Neder-lander Producing Co. of Am., Inc. ( 44 AD3d 556), the Appellate Division granted conditional summary judgment to Gershwin on its contractual indemnification claim against Abhann, finding that Gershwin established its prima facie case "by demonstrating, through deposition testimony and other evidence, that the fogger machines and floor that caused plaintiffs injury were under the exclusive control of Abhann, and that Abhann had directed every aspect of the work through which plaintiff was injured" ( id. at 556). Based on that determination, Gershwin moved to dismiss the complaint under theories of res judicata, collateral estoppel and the law of the case.
Roddy v Nederlander Producing Co. of Am., Inc., 73 AD3d 583, reversed.
Queller, Fisher, Washor, Fuchs Kool, LLP, New York City ( Jonny Kool and Barry A. Washor of counsel), for appellant.
Law Offices of Charles J. Siegel, New York City ( Robert S. Cypher, Jr., of counsel), for Nederlander Producing Company of America, Inc., and another, respondents.
Mischel Horn, P.C., New York City ( Scott T. Horn of counsel), for Abhann Productions, Inc., respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and plaintiffs complaint as against defendants Nederlander Producing Company of America, Inc. and The Gershwin Theatre reinstated.
Plaintiff did not have a full and fair opportunity to litigate the issue of defendants' negligence. The issue of defendants' negligence was previously determined in an Appellate Division order granting defendants summary judgment on a third-party contractual indemnification claim against plaintiffs employer, third-party defendant Abhann Productions, Inc. Plaintiff had no interest in the outcome of the third-party indemnification claim. Plaintiff thus had neither incentive to litigate the motion for summary judgment nor adequate notice that the issue of defendants' negligence could be conclusively decided against him. Under these circumstances, the law of the case doctrine does not preclude plaintiff from litigating the issue of defendants' negligence.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.