Opinion
June 29, 1987
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Ordered that the order is affirmed, with costs.
While we disagree with Special Term to the extent that it held that the doctrine of the law of the case necessarily bars reconsideration of the Statute of Limitations issue, we nevertheless affirm the order denying the defendants' motion for summary judgment for the reasons which follow.
We note, at the outset, that the doctrine of law of the case is "`not an absolute mandate on the court,' since it may be `ignored' in `extraordinary circumstances' vitiating its effectiveness as a rule fostering orderly convenience * * * such as a change in the law" (Foley v Roche, 86 A.D.2d 887, lv denied 56 N.Y.2d 507, quoting from Politi v Irvmar Realty Corp., 13 A.D.2d 469). Although we held in a previous appeal involving these litigants that the insertion of an intramedullary nail, which is a fixation device, would fall within the ambit of the foreign object exception to the Statute of Limitations and that the plaintiff's cause of action, therefore, accrued upon discovery of the broken nail (see, Szajna v Rand, 75 A.D.2d 617), "it is now clear that a fixation device placed intentionally within the body cannot be considered a foreign object even with respect to claims which arose prior to July 1, 1975, the effective date of CPLR 214-a" (Mitchell v Abitol, 130 A.D.2d 633; Lombardi v DeLuca, 130 A.D.2d 632; see also, Goldsmith v Howmedica, Inc. 67 N.Y.2d 120). Accordingly, since the analysis employed by this court in the prior appeal no longer reflects the current state of the law, the doctrine of law of the case should not be invoked to preclude reconsideration of the Statute of Limitations question nor does the doctrine preclude the application of those cases which unequivocally stand for the proposition that an intentionally implanted fixation device cannot be deemed a foreign object so as to toll the Statute of Limitations until discovery of the injury (see, Foley v Roche, 86 A.D.2d 887, lv denied 56 N.Y.2d 507, supra).
We find, however, that the plaintiff has raised triable issues of fact as to whether the Statute of Limitations should be tolled by virtue of the defendants' alleged fraudulent concealment of the plaintiff's injuries and the plaintiff's consequent reliance upon his representations and advice (see, Simcuski v Saeli, 44 N.Y.2d 442). Since the record contains disputed allegations pertaining to the issue of fraudulent concealment, an award of summary judgment in favor of the defendants would be inappropriate at this juncture. Thompson, J.P., Weinstein, Eiber and Sullivan, JJ., concur.