Opinion
July 14, 1992
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, J.P., Green, Lawton, Boehm and Davis, JJ.
Order unanimously reversed on the law without costs, motion denied, third-party complaint reinstated and stay vacated. Memorandum: Supreme Court erred in granting the motion of third-party defendant Falls Steel Erectors, Inc. (Falls Steel) to renew and, upon such renewal, granting Falls Steel's motion for summary judgment dismissing the third-party complaint of the City of Niagara Falls (City). That same relief had been previously denied by Supreme Court in its order of January 24, 1990, which granted the City's motion to dismiss Falls Steel's affirmative defenses and denied Falls Steel's cross motion for summary judgment dismissing the third-party complaint. Upon appeal of that order, our court affirmed (Rohring v. City of Niagara Falls, 167 A.D.2d 992, rearg denied App. Div., 4th Dept, Feb. 1, 1991).
The amount of a subsequent jury verdict in favor of the plaintiff came within the amount of the coverage provided to the City as an additional insured under the comprehensive liability policy obtained by Falls Steel. Even if designated as a newly-discovered fact, that was inadequate to justify renewal. "While, in certain circumstances, it might be proper for the court of original jurisdiction to entertain a motion to renew based upon newly discovered evidence after the appellate courts have affirmed the original order" (Matter of Banow v. Simins, 53 A.D.2d 542), our previous affirmance was not conditioned upon any subsequent event, including the amount of the verdict. "Our prior decision in [a] case is the law of the case until modified or reversed by a higher court, and the trial court is bound by our decision [citations omitted]" (Lancaster Silo Block Co. v Northern Propane Gas Co., 75 A.D.2d 55, 60; see also, Bolm v Triumph Corp., 71 A.D.2d 429, 434, lv dismissed 50 N.Y.2d 801).
Because we reverse, it is unnecessary to address the other points raised on appeal. We also vacate the stay in the restraining order of June 4, 1991 obtained ex parte by Falls Steel, and reinstate the original order of January 24, 1990.