SPIERER v. USA (2009)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about January 3, 2008, which, upon renewal, granted the motion of defendant Simmons to dismiss the complaint as against it, unanimously affirmed, with costs.

 This is a personal injury/product liability action alleging injury from exposure to toxic chemicals in bedding manufactured by defendant Simmons and purchased from defendant Bloomingdale's.   The court properly applied the law of the case doctrine (People v. Evans, 94 N.Y.2d 499, 504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000];  Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975] ) in dismissing the claims against Simmons based on this Court's earlier dismissal of the claims against Bloomingdale's for lack of a defect and proximate cause (43 A.D.3d 664, 841 N.Y.S.2d 299, lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803).

 Renewal was warranted because dismissal of the action against Bloomingdale's constituted a change in the law (CPLR 2221[e][2] )-i.e., a new pronouncement of the law governing this case (see Avalon, LLC v. Coronet Props. Co., 16 A.D.3d 209, 210, 791 N.Y.S.2d 530 [2005];  Engel v. Eichler, 300 A.D.2d 622, 753 N.Y.S.2d 109 [2002] ).