Opinion
Decided February 3, 1998
Appeal from the Supreme Court, New York County (Norman Ryp, J.).
We decline to give the prior decision of this Court in this action ( 220 A.D.2d 353) law of the case effect as to anything other than "legal determinations that were necessarily resolved on the merits in the prior decision" (Baldasano v. Bank of N.Y., 199 A.D.2d 184, 185). As such, none of the parties' arguments on this appeal are foreclosed. Although we do not agree that the action was untimely commenced, since CPLR 203 (b) (5) (i) was applicable to Supreme Court actions during the so-called transitional period (L 1992, ch 216; see, Campbell v. Command Sec., 216 A.D.2d 508, 509), we find that a notice of claim is required for the causes of action plaintiffs assert, and that adequate notice had not been given. We decline to grant plaintiffs leave to file a late notice in the present circumstances where there is no adequate reason for plaintiffs' "delay in taking steps to obtain permission to give late notice" (Matter of Rios v. City of New York, 180 A.D.2d 801, 802) and where plaintiffs' action is without substantive merit. For the reasons stated by the Federal court in dismissing plaintiffs' prior action (see, Sudarsky v. City of New York, 779 F. Supp. 287, affd. 969 F.2d 1041, cert denied 506 U.S. 1084, reh denied 507 U.S. 980), the challenged governmental action does not fall below a "floor of constitutional protection for property owners" (Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385, 392, cert denied 514 U.S. 1109).
Concur — Milonas, J. P., Rubin, Tom and Mazzarelli, JJ.