On January 21, 2014, the First Department issued a decision in Gliklad v. Cherney, 2014 NY Slip Op. 00310, affirming the striking of an affirmative defense based on the law of the case doctrine.
“In a prior appeal,” the First Department held “that the promissory note” at issue in Gliklad “contained a clause selecting New York as the forum” for the litigation. In subsequent proceedings, the trial court did not allow the defendant to put on an expert witness “in support of his claim that the note contained only a choice of law clause.” The First Department affirmed that decision, explaining that the expert’s testimony did “not constitute subsequent or new evidence that was previously unavailable for the purpose of avoiding the law of the case doctrine. Given the binding ruling as to the forum selection clause, the [trial] court correctly found that defendant was barred from asserting a defense based on lack of jurisdiction.” (Internal quotations and citations omitted) (emphasis added).
This decision is a reminder that the law of the case doctrine can be unforgiving, particularly because the availability of interlocutory appeals in New York means that issues are sometimes decided before the facts relating to them are fully developed.