OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. We agree that the Appellate Division was not bound by its earlier determination, as the law of the case, because of the additional and persuasive evidence on the second trial. On the merits we find that the defendant was entitled to a directed *874verdict for the reasons stated in the Per Curiam opinion at the Appellate Division (58 AD2d 320; see, also, Process Plants Corp. v Beneficial Nat. Life Ins. Co., 42 NY2d 928, affg 53 AD2d 214).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.