Opinion
November 10, 1987
Appeal from the Supreme Court, Monroe County, Patlow, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Davis, JJ.
Order unanimously reversed on the law without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Special Term erred in denying defendant's motion for summary judgment solely on the law of the case doctrine. The order for a new trial by this court in International Sys. v. Delcrete Corp. ( 103 A.D.2d 1008) does not necessarily imply that plaintiff has established a prima facie case (see, Garcia v. City of New York, 104 A.D.2d 438, affd 65 N.Y.2d 805; Barrett v. State Mut. Life Assur. Co., 58 A.D.2d 320, affd 44 N.Y.2d 872, cert denied 440 U.S. 912). This court never passed upon the issue of sufficiency of notice under UCC 2-607 (3) (a). Thus, the merits of the motion and the sufficiency of the notice have still not been ruled upon. Where an issue has not been ruled upon by Special Term, this court will not review the issue on appeal (see, City of Rochester v Chiarella, 86 A.D.2d 110, 114, affd 58 N.Y.2d 316; Omowale v State of New York, 72 A.D.2d 955, 956).