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Law of the Case Doctrine Bars Relitigation of Issue Previously Affirmed on Appeal

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  • Posted on: Dec 3 2018

“Law of the case” is a phrase that litigators use all of the time, often without thought or explanation. But what is the law of the case doctrine? And, when does it apply?

The law of the case doctrine is part of a larger group of related concepts – i.e., res judicata (claim preclusion) and collateral estoppel (issue preclusion) – that are designed to limit the relitigation of issues. Like res judicata and collateral estoppel, the law of the case doctrine contemplates that the parties had a “full and fair” opportunity to litigate the initial determination.

The law of the case doctrine is focused on the preclusive effect of judicial determinations made during the course of a litigation before final judgment. Erickson v. Cross Ready Mix, Inc., 98 A.D.3d 717, 717 (2d Dept. 2012) (“The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision”) (internal quotation marks and citations omitted). Res judicata and collateral estoppel address preclusion of issues and claims after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action (see Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 347 (1999)), while collateral estoppel precludes relitigating an issue decided in a prior action (see Continental Cas. Co. v. Rapid American Corp., 80 N.Y.2d 640, 649 (1993)).

In New York, the Civil Practice Law and Rules (“CPLR”) specifically recognizes res judicata and collateral estoppel as bases for dismissal. See CPLR 3211(a)(5). Both concepts are also affirmative defenses under the CPLR. See CPLR 3018(b). By contrast, the law of the case doctrine is not found in any statute.

Beyond the foregoing differences, there is another difference that distinguishes the law of the case doctrine from issue preclusion and claim preclusion. The latter concepts are rigid rules of limitation, whereas the law of the case doctrine is a judicially crafted policy that “expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). See also Clark v. Clark, 117 A.D.3d 668, 669 (2014) (“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned”) (internal quotation marks omitted), quoting Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975).  As such, the law of the case doctrine “directs a court’s discretion,” but does not restrict its authority. See Arizona v. California, 460 U.S. 605, 618 (1983).

The doctrine does not, however, apply upon “a showing of subsequent evidence or change of law.” J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809 (2d Dept. 2007) (“[T]he law of the case operates to foreclose re-examination of [the] question absent a showing of subsequent evidence or change of law”) (internal quotations omitted), quoting Matter of Yeampierre v. Gutman, 57 A.D.2d 898, 899 (2d Dept. 1977).

Recently, the Appellate Division, First Department, was asked to decide whether the doctrine applies to an issue that was previously affirmed on appeal.  In Getty Properties Corp. v. Getty Petroleum Marketing, Inc., 2018 N.Y. Slip Op. 08076 (1st Dept. Nov. 27, 2018) (here), the First Department held that the doctrine barred the trial court from revisiting its earlier decision, which the Court had previously affirmed:

Plaintiffs are correct that our affirmance of the prior judgment awarding prejudgment interest on attorneys’ fees constitutes the law of the case. As such, the IAS court should not have deviated from it. [Citation omitted.]

The Court also noted that its prior order of affirmance “foreclose[d] any additional challenge on the issue by defendants.” Citing Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545-546 (1st Dept. 2013).


As noted, the law of the case doctrine operates to foreclose relitigation of an issue when the parties had a “full and fair” opportunity to do so.  When an appellate court resolves an issue in a prior appeal of the action, as in Getty Properties, that decision becomes law of the case and is binding on the Supreme Court, as well as on the appellate court. Getty Properties therefore stands as a reminder that unless a party identifies new information in discovery or a change in the law, or otherwise advances extraordinary circumstances “warranting a departure from the earlier determination on th[e] issue” (see Quinn v. Hillside Dev. Corp., 21 A.D.3d 406, 407 ( 2d Dept. 2005)), he/she will have to proceed under the prior ruling.

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