Opinion
November 5, 1992
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
The order on appeal was subsequently vacated and thus rendered moot. The defendant is no longer an aggrieved party (see, CPLR 5511; cf., 100 Hudson Tenants Corp. v Laber, 98 A.D.2d 692), and accordingly the appeal should be dismissed. In any event, this Court's previous order of affirmance on the issue of liability impliedly held that the issue of damages was to be tried after defendant had an opportunity to conduct discovery with respect to that issue [ 173 A.D.2d 424]. Defendant chose not to do so, and plaintiff's right to damages has become the law of the case (cf., Martin v City of Cohoes, 37 N.Y.2d 162, 165). Plaintiff, as bailor, has established a prima facie case sufficient to rebut any limitation on liability for loss of goods (I.C.C. Metals v Municipal Warehouse Co., 50 N.Y.2d 657, 665, 667-668).
Concur — Carro, J.P., Ellerin, Kupferman, Kassal and Rubin, JJ.