First Department Finds That its Decision as to One Defendant Was Law of the Case as to the Remaining Defendants

In David v. Persaud, the plaintiff alleged that defendant Dr. Cerbone, an ER attending and defendant surgeon, Dr. Hutchinson, failed to diagnose and treat a post-operative infection at defendant St Barnabas Hospital which ultimately led to the death of her decedent.  On motions and cross-motions by all defendants for summary judgment, the trial court denied the motions and Dr. Cerbone appealed.  The First Department reversed and dismissed the claim against Dr. Cerbone, finding that "plaintiff's expert failed to causally relate the alleged four-day delay in diagnosis... to decedent's death."

Thereafter, Dr. Hutchinson and St Barnabas moved to renew their motions for summary judgment, which were granted and plaintiff appealed.  The First Department affirmed, finding that the lower court had properly relied on law of the case doctrine.  The First Department also found that renewal was the appropriate procedural course because its earlier decision dismissing the case against Dr. Cerbone constituted a change in the law.