Opinion
4721
December 13, 2001.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered November 28, 2000, which insofar as appealed from, as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Eli Uncyk, for plaintiff-respondent.
Stephen W. Schlissel, for defendant-appellant.
Before: Nardelli, J.P., Williams, Tom, Andrias, Marlow, JJ.
Although this Court, unlike the court at nisi prius, is not bound by the doctrine of law of the case, where the decedent and defendant arguably had a fiduciary relationship with each other, issues of credibility are presented as to the parties' dealings, the decedent's allegedly diminished capacity and his reliance upon defendant, which cannot be resolved on the present record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.