Wyoming County Bank v. Ackerman

—Judgment unanimously affirmed without costs. Memorandum: We reject defendant’s contention that Supreme Court (NeMoyer, J.) erred in granting plaintiffs motion for a directed verdict when another Supreme Court Justice (Notaro, J.) had previously denied plaintiffs motion for summary judgment. Justice Notaro had found a triable issue of fact whether defendant complied with an agreement between the parties. “A denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at the trial” (Sackman-Gilliland Corp. v Senator Holding Corp., 43 AD2d 948, 949, lv denied 34 NY2d 515). Thus, the trial court was not precluded from directing a verdict in plaintiffs favor (see, Smith v Hooker Chem. & Plastics Corp., 125 AD2d 944, 945, affd 70 NY2d 994, rearg denied 71 NY2d 995). (Appeal from Judgment of Supreme Court, Wyoming County, NeMoyer, J. — Contract.) Present — Pigott, Jr., P. J., Green, Hayes, Burns and Lawton, JJ.