QUINN v. County Center Roofing Co., Inc., third-party defendant-respondent. (2005)

In an action to recover damages for personal injuries, the defendant third-party plaintiff, Hillside Development Corp., appeals, as limited by its letter dated December 10, 2004, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered May 25, 2004, as denied its cross motion for summary judgment on the issue of liability against the third-party defendant County Center Roofing Co., Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when a ladder slipped out from under him while he was descending from the roof of a building owned by the defendant third-party plaintiff, Hillside Development Corp. (hereinafter Hillside).   He commenced this action against Hillside to recover damages for personal injuries.   Hillside commenced a third-party action against County Center Roofing Co., Inc. (hereinafter CC Roofing).   Hillside alleged that it was being held vicariously liable for the negligence of CC Roofing, which provided the ladder, and sought indemnity.

The Supreme Court properly denied Hillside's cross motion for summary judgment on the issue of liability against CC Roofing.   On a prior appeal, upon reviewing the denial of CC Roofing's motion for summary judgment, this court found that there was a triable issue of fact on whether the plaintiff was an employee of CC Roofing on the date of the accident (see Quinn v. Hillside Dev. Corp., 309 A.D.2d 794, 795, 765 N.Y.S.2d 524).   Since Hillside's cross motion, which is the subject of this appeal, was based on the same arguments and facts Hillside raised in opposition to CC Roofing's prior motion, this court's prior determination constitutes the law of the case on this issue (see Johnson v. Incorporated Vil. of Freeport, 288 A.D.2d 269, 733 N.Y.S.2d 622;  Matter of Parsons, 78 A.D.2d 876, 433 N.Y.S.2d 28).   Moreover, Hillside did not demonstrate extraordinary circumstances warranting a departure from the earlier determination on this issue (see Carole A. v. City of New York, 169 A.D.2d 800, 801, 565 N.Y.S.2d 169;  Vanguard Tours v. Town of Yorktown, 102 A.D.2d 868, 477 N.Y.S.2d 40;  cf. Persaud v. City of New York, 307 A.D.2d 346, 347, 762 N.Y.S.2d 641).

Under the circumstances, it is unnecessary for us to revisit the substantive arguments of the parties concerning the employment status issue (see Matter of Parsons, supra ).