On June 15, 2016, Justice Bransten of the New York County Commercial Division issued a decision in Korff v. Corbett, 2016 NY Slip Op. 31127(U), holding that the law of the case doctrine did not make determinations made on a motion to dismiss binding on summary judgment, explaining:
In support of his motion seeking judgment on his breach of contract claim, Plaintiff first argues that the First Department’s 2005 decision regarding Defendants’ motion to dismiss conclusively establishes that there was a valid agreement between the parties, thus barring Defendants’ dismissal arguments. In that decision, the First Department concluded that Plaintiff sufficiently alleged the existence of the Agreement, such that his breach of contract claim survived Defendants’ motion to dismiss. Decisions of the Appellate Division made in a case, whether correct or incorrect, are the law of the case until modified or reversed by a higher court. However, the doctrine of the law ofthe case applies only to legal determinations resolved on the merits. The doctrine does not apply when a summary judgment motion follows a motion to dismiss because the scope of review is distinct. In addition, the doctrine does not apply when new evidence comes to light following the initial ruling. . . .
On appeal from the motion court’s order dismissing Plaintiffs complaint, the First Department addressed Plaintiffs allegations as set forth therein, and found Plaintiff sufficiently pleaded causes of action for breach of contract and unjust enrichment. With respect to the motions for summary judgment, this Court has a different task, and must determine whether Plaintiff has proven his claims based on the evidence adduced during lengthy discovery, including the thousands of relevant pages produced after the First Department rendered its decision. In light of these facts, the doctrine of law of the case does not apply, and Defendants’ arguments are not barred on this ground.
(Internal quotations and citations omitted) (emphasis added).