Foundation for Evidence - Law of the Case
The Court of Appeals, in an opinion by Judge Rosenblatt, explained the doctrine of law of the case in People v. Evans.[1] He stated:
“The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion). These doctrines, broadly speaking, are designed to limit re-litigation of issues. Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a “full and fair” opportunity to litigate the initial determination. Res judicata and collateral estoppel generally deal with preclusion after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action, while collateral estoppel precludes relitigating an issue decided in a prior action. Accordingly, the law of the case has been aptly characterized as “a kind of intra-action res judicata”.
Res judicata and collateral estoppel are rules of limitation recognized in the CPLR. Indeed, in a civil proceeding, a party is entitled, by statute, to a dismissal based on issue preclusion or claim preclusion, both of which are also designated as affirmative defenses. Contrastingly, the law of the case doctrine is found in no New York statute. As such, the law of the case is necessarily “amorphous” in that it “directs a court's discretion”, but does not restrict its authority.
Over the years, the phrase “law of the case” has appeared at various times in New York decisional law, but it has not always meant the same thing...[W]e now refer to it primarily in the manner raised on this appeal—as a concept regulating pre-judgment rulings made by courts of coordinate jurisdiction in a single litigation.
We agree with defendant insofar as he asserts that the law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case. This Court recognized as much in Matter of Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E.2d 650, when it cautioned that “a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction.” [2]
The law of the case is a discretionary doctrine. It is a concept that is applied as a matter of judicial discretion or out of respect for the judgment of fellow judges at the same level of the judiciary rather than in accordance with fixed and nondiscretionary rules. The doctrine of law of the case permits a reasoned exercise of a certain degree of discretion in its application,[3] and it may be ignored in extraordinary circumstances.[4]
The doctrine of law of the case is not a rule of evidence. It is “is a rule of practice, an articulation of sound policy” that, when an issue is once finally determined on the merits, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Thus, the decision of the judge who first determines an issue on the merits binds all courts of co-ordinate jurisdiction, regardless of whether a formal order was entered. [5] The doctrine applies exclusively to questions of law. It makes a legal determination on the merits in a given case binding not only on the parties but on all other judges of coordinate jurisdiction.[6]
The law of the case contemplates that the parties had a “full and fair” opportunity to litigate the initial determination. [7] Thus, the doctrine applies only to legal determinations that were necessarily litigated and resolved on the merits in a prior decision. [8] Under the doctrine, parties or their privies are “precluded from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.[9] An issue must be actually litigated for the law of the case doctrine to apply.[10] The doctrine of law of the case may be applied only where a court directly passes upon an issue which is necessarily involved in the final determination on the merits. The doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in the prior decision. [11] Thus, consideration of an issue is not precluded by the law of the case doctrine if the prior ruling did not finally determine the issue on the merits.[12]
The doctrine does not apply to a prior sua sponte determination by the trial court since the parties have not litigated the issue. [13]
The doctrine of the law of the case does not apply to statements by a court that are mere dicta or supposition by the court, [14] or to rulings which are based upon the discretion of the court, such as case management decisions.[15] The law of the case is inapplicable to a prior discretionary, conditional preclusion order. [16] A gratuitous legal issue not directly raised is not binding where all parties did not have full and fair opportunity to address it.[17]
In matrimonial actions, where there is the need for speedy resolution of temporary matters, findings made for a temporary purpose will not bind the judge who has to decide the merits of the case later on. Findings made for the purpose of awarding temporary relief, such as maintenance, child support, counsel fees, custody and exclusive occupancy of the marital residence do not bind the court when it later makes a final judgment.[18] This is so even if the temporary findings were the product of a hearing rather than just motion papers and affidavits.
Appellate courts are not bound by the law of the case doctrine.[19]
[1] 94 N.Y.2d 499, 502–05, 727 N.E.2d 1232, 1234–36 (2000)
[2] Id.
[3] In re LaDelfa, 107 A.D.3d 1562, 968 N.Y.S.2d 759 (4th Dep't 2013)
[4] Frankson v. Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 886 N.Y.S.2d 714 (2d Dep't 2009); Welch Foods, Inc. v. Wilson, 262 A.D.2d 949, 692 N.Y.S.2d 873 (4th Dep't 1999)
[5] See Matter of Levinson, 11 A.D.3d 826, 784 N.Y.S.2d 165, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 1, 825 N.E.2d 133; Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676; Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 760.
[6] State of N.Y. Higher Educ. Servs. Corp. v. Starr, 158 A.D.2d 771, 772, 551 N.Y.S.2d 363, 364 (3d 1990); Siegel, NY Prac § 448, at 593; see, 1 Carmody–Wait 2d, NY Prac §§ 2:64, 2:66, at 76, 79.
[7] Chanice v Federal Exp. Corp., 118 AD3d 634, 989 NYS2d 468 (1st Dept 2014).
[8] Perini Corp. v. City of New York, 122 A.D.3d 528, 998 N.Y.S.2d 11 (1st Dep’t 2014); Ramanathan v. Aharon, 109 A.D.3d 529, 970 N.Y.S.2d 574 (2d Dep’t 2013); Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 950 NYS2d 175 (2d Dept 2012) Town of Angelica v. Smith, 89 A.D.3d 1547, 933 N.Y.S.2d 480 (4th Dep’t 2011); Pollack v. Pollack, 290 A.D.2d 548, 736 N.Y.S.2d 632 (2d Dept., 2002)( “The order referring for a hearing the issues of whether the former guardian ad litem for the defendant is entitled to recover an attorney's fee from the plaintiff, and the extent and value of the services rendered by the guardian ad litem, was not barred by the doctrine of the law of the case. The issues decisive in the motion were not litigated and decided in a prior order dated February 21, 1997, in this action.”)
[9] Ball v. Brodsky, 126 A.D.3d 448, 2015 WL 920055 (1st Dep’t 2015); Roddy v. Nederlander Producing Co. of Am., 73 A.D.3d 583, 585, 904 N.Y.S.2d 5, 7, rev'd, 15 N.Y.3d 944, 941 N.E.2d 1155 (2010)
[10] People ex rel. Spitzer v. Grasso, 54 A.D.3d 180, 861 N.Y.S.2d 627 (1st Dep’t 2008)
[11] Thompson v. Cooper, 24 A.D.3d 203, 806 N.Y.S.2d 32 (1st Dep’t 2005); Kopsidas v. Krokos, 18 A.D.3d 822, 796 N.Y.S.2d 635 (2d Dep’t 2005)...
[12] Gray v. Sandoz Pharmaceuticals, Div. of Sandoz, Inc., 123 A.D.2d 829, 507 N.Y.S.2d 444 (2d Dep’t 1986).
[13] Debcon Financial Services, Inc. v. 83-17 Broadway Corp., 126 A.D.3d 752, 5 N.Y.S.3d 478 (2d Dep’t 2015)
[14] 220-52 Associates v. Edelman, 18 A.D.3d 313, 797 N.Y.S.2d 39 (1st Dep’t 2005)
[15] Brothers v. Bunkoff General 296 A.D.2d 764, 745 N.Y.S.2d 284 (3d Dept.,2002)
[16] Bros. v. Bunkoff Gen. Contractors, 296 A.D.2d 764, 765, 745 N.Y.S.2d 284, 286 (3d Dept., 2002)
[17] Gay v Farella, 5 AD3d 540, 772 NYS2d 871 (2d Dept 2004); Gee Tai Chong Realty Corp. v GA Ins. Co. of New York, 283 AD2d 295, 727 NYS2d 388 (1st Dept 2001) (no full and fair opportunity to litigate issue of coverage).
[18] In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009); Cellamare v Lakeman, 36 AD3d 905, 829 NYS2d 590 (2d Dept 2007); see In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009).
[19] In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009); Cellamare v Lakeman, 36 AD3d 905, 829 NYS2d 590 (2d Dept 2007); see In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009).
The Court of Appeals, in an opinion by Judge Rosenblatt, explained the doctrine of law of the case in People v. Evans.[1] He stated:
“The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion). These doctrines, broadly speaking, are designed to limit re-litigation of issues. Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a “full and fair” opportunity to litigate the initial determination. Res judicata and collateral estoppel generally deal with preclusion after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action, while collateral estoppel precludes relitigating an issue decided in a prior action. Accordingly, the law of the case has been aptly characterized as “a kind of intra-action res judicata”.
Res judicata and collateral estoppel are rules of limitation recognized in the CPLR. Indeed, in a civil proceeding, a party is entitled, by statute, to a dismissal based on issue preclusion or claim preclusion, both of which are also designated as affirmative defenses. Contrastingly, the law of the case doctrine is found in no New York statute. As such, the law of the case is necessarily “amorphous” in that it “directs a court's discretion”, but does not restrict its authority.
Over the years, the phrase “law of the case” has appeared at various times in New York decisional law, but it has not always meant the same thing...[W]e now refer to it primarily in the manner raised on this appeal—as a concept regulating pre-judgment rulings made by courts of coordinate jurisdiction in a single litigation.
We agree with defendant insofar as he asserts that the law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case. This Court recognized as much in Matter of Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E.2d 650, when it cautioned that “a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction.” [2]
The law of the case is a discretionary doctrine. It is a concept that is applied as a matter of judicial discretion or out of respect for the judgment of fellow judges at the same level of the judiciary rather than in accordance with fixed and nondiscretionary rules. The doctrine of law of the case permits a reasoned exercise of a certain degree of discretion in its application,[3] and it may be ignored in extraordinary circumstances.[4]
The doctrine of law of the case is not a rule of evidence. It is “is a rule of practice, an articulation of sound policy” that, when an issue is once finally determined on the merits, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Thus, the decision of the judge who first determines an issue on the merits binds all courts of co-ordinate jurisdiction, regardless of whether a formal order was entered. [5] The doctrine applies exclusively to questions of law. It makes a legal determination on the merits in a given case binding not only on the parties but on all other judges of coordinate jurisdiction.[6]
The law of the case contemplates that the parties had a “full and fair” opportunity to litigate the initial determination. [7] Thus, the doctrine applies only to legal determinations that were necessarily litigated and resolved on the merits in a prior decision. [8] Under the doctrine, parties or their privies are “precluded from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.[9] An issue must be actually litigated for the law of the case doctrine to apply.[10] The doctrine of law of the case may be applied only where a court directly passes upon an issue which is necessarily involved in the final determination on the merits. The doctrine of the law of the case applies only to legal determinations that were necessarily resolved on the merits in the prior decision. [11] Thus, consideration of an issue is not precluded by the law of the case doctrine if the prior ruling did not finally determine the issue on the merits.[12]
The doctrine does not apply to a prior sua sponte determination by the trial court since the parties have not litigated the issue. [13]
The doctrine of the law of the case does not apply to statements by a court that are mere dicta or supposition by the court, [14] or to rulings which are based upon the discretion of the court, such as case management decisions.[15] The law of the case is inapplicable to a prior discretionary, conditional preclusion order. [16] A gratuitous legal issue not directly raised is not binding where all parties did not have full and fair opportunity to address it.[17]
In matrimonial actions, where there is the need for speedy resolution of temporary matters, findings made for a temporary purpose will not bind the judge who has to decide the merits of the case later on. Findings made for the purpose of awarding temporary relief, such as maintenance, child support, counsel fees, custody and exclusive occupancy of the marital residence do not bind the court when it later makes a final judgment.[18] This is so even if the temporary findings were the product of a hearing rather than just motion papers and affidavits.
Appellate courts are not bound by the law of the case doctrine.[19]
[1] 94 N.Y.2d 499, 502–05, 727 N.E.2d 1232, 1234–36 (2000)
[2] Id.
[3] In re LaDelfa, 107 A.D.3d 1562, 968 N.Y.S.2d 759 (4th Dep't 2013)
[4] Frankson v. Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 886 N.Y.S.2d 714 (2d Dep't 2009); Welch Foods, Inc. v. Wilson, 262 A.D.2d 949, 692 N.Y.S.2d 873 (4th Dep't 1999)
[5] See Matter of Levinson, 11 A.D.3d 826, 784 N.Y.S.2d 165, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 1, 825 N.E.2d 133; Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676; Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 760.
[6] State of N.Y. Higher Educ. Servs. Corp. v. Starr, 158 A.D.2d 771, 772, 551 N.Y.S.2d 363, 364 (3d 1990); Siegel, NY Prac § 448, at 593; see, 1 Carmody–Wait 2d, NY Prac §§ 2:64, 2:66, at 76, 79.
[7] Chanice v Federal Exp. Corp., 118 AD3d 634, 989 NYS2d 468 (1st Dept 2014).
[8] Perini Corp. v. City of New York, 122 A.D.3d 528, 998 N.Y.S.2d 11 (1st Dep’t 2014); Ramanathan v. Aharon, 109 A.D.3d 529, 970 N.Y.S.2d 574 (2d Dep’t 2013); Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 950 NYS2d 175 (2d Dept 2012) Town of Angelica v. Smith, 89 A.D.3d 1547, 933 N.Y.S.2d 480 (4th Dep’t 2011); Pollack v. Pollack, 290 A.D.2d 548, 736 N.Y.S.2d 632 (2d Dept., 2002)( “The order referring for a hearing the issues of whether the former guardian ad litem for the defendant is entitled to recover an attorney's fee from the plaintiff, and the extent and value of the services rendered by the guardian ad litem, was not barred by the doctrine of the law of the case. The issues decisive in the motion were not litigated and decided in a prior order dated February 21, 1997, in this action.”)
[9] Ball v. Brodsky, 126 A.D.3d 448, 2015 WL 920055 (1st Dep’t 2015); Roddy v. Nederlander Producing Co. of Am., 73 A.D.3d 583, 585, 904 N.Y.S.2d 5, 7, rev'd, 15 N.Y.3d 944, 941 N.E.2d 1155 (2010)
[10] People ex rel. Spitzer v. Grasso, 54 A.D.3d 180, 861 N.Y.S.2d 627 (1st Dep’t 2008)
[11] Thompson v. Cooper, 24 A.D.3d 203, 806 N.Y.S.2d 32 (1st Dep’t 2005); Kopsidas v. Krokos, 18 A.D.3d 822, 796 N.Y.S.2d 635 (2d Dep’t 2005)...
[12] Gray v. Sandoz Pharmaceuticals, Div. of Sandoz, Inc., 123 A.D.2d 829, 507 N.Y.S.2d 444 (2d Dep’t 1986).
[13] Debcon Financial Services, Inc. v. 83-17 Broadway Corp., 126 A.D.3d 752, 5 N.Y.S.3d 478 (2d Dep’t 2015)
[14] 220-52 Associates v. Edelman, 18 A.D.3d 313, 797 N.Y.S.2d 39 (1st Dep’t 2005)
[15] Brothers v. Bunkoff General 296 A.D.2d 764, 745 N.Y.S.2d 284 (3d Dept.,2002)
[16] Bros. v. Bunkoff Gen. Contractors, 296 A.D.2d 764, 765, 745 N.Y.S.2d 284, 286 (3d Dept., 2002)
[17] Gay v Farella, 5 AD3d 540, 772 NYS2d 871 (2d Dept 2004); Gee Tai Chong Realty Corp. v GA Ins. Co. of New York, 283 AD2d 295, 727 NYS2d 388 (1st Dept 2001) (no full and fair opportunity to litigate issue of coverage).
[18] In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009); Cellamare v Lakeman, 36 AD3d 905, 829 NYS2d 590 (2d Dept 2007); see In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009).
[19] In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009); Cellamare v Lakeman, 36 AD3d 905, 829 NYS2d 590 (2d Dept 2007); see In re Jonathan M., 61 AD3d 1374, 877 NYS2d 575 (4th Dept 2009).
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