Opinion
(987) CA 01-00500.
September 28, 2001.
(Appeal from Judgment of Supreme Court, Wyoming County, NeMoyer, J. — Contract.)
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, BURNS AND LAWTON, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
We reject defendant's contention that Supreme Court (NeMoyer, J.) erred in granting plaintiff's motion for a directed verdict when another Supreme Court Justice (Notaro, J.) had previously denied plaintiff's motion for summary judgment. Justice Notaro had found a triable issue of fact whether defendant complied with an agreement between the parties. "A denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at the trial" ( Sackman-Gilliland Corp. v. Senator Holding Corp., 43 A.D.2d 948, 949, lv denied 34 N.Y.2d 515). Thus, the trial court was not precluded from directing a verdict in plaintiff's favor ( see, Smith v. Hooker Chem. Plastics Corp., 125 A.D.2d 944, 945, affd 70 N.Y.2d 994, rearg denied 71 N.Y.2d 995).