Rock v. Capitol Air, Inc.

In an action to recover damages, inter alia, for *692breach of contract, false imprisonment, and slander, the defendant appeals from an order of the Supreme Court, Kings County (Lodato, J.), dated May 5, 1986, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant’s motion for summary judgment was denied upon the ground that the denial of the plaintiffs’ prior motion for summary judgment dismissing certain of the defendant’s affirmative defenses was the law of the case, and also because the court found that the defendant had produced no new evidence which might permit a different determination. However, the doctrine of the law of the case does not apply in this court, and thus the prior denial of the plaintiffs’ motion is not an impediment to this court’s consideration of the defendant’s motion on the merits (see, Freeze Right Refrig. & Air Conditioning Servs. v City of New York, 101 AD2d 175, 180).

We also find that the defendant submitted new evidence which permits the granting of its motion. The undisputed evidence adduced during discovery shows that the plaintiff Anita Rock left the defendant’s aircraft voluntarily. Additionally, the plaintiffs Martha Brown and Florence Rock are estopped from challenging the defendant’s decision to remove them from the aircraft for safety reasons by virtue of the default judgments rendered against them in actions to recover civil penalties for their violations of Federal Aviation Administration regulations (see, Clemens v Apple, 65 NY2d 746). Mangano, J. P., Brown, Niehoff and Fiber, JJ., concur.