J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 2018 NY Slip Op 06146 [1st Dept, 2018]
However, application of the doctrine of the "law of the case" is not warranted under the particular circumstances before us.
The law of the case is applicable to "legal determinations that were necessarily resolved on the merits in a prior decision" (Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2d Dept 2006]). On the prior appeal, the Court of Appeals stated that "the Insurers do not earnestly dispute that the claims fall within the policy's definition of Loss" (21 NY3d at 333), but did not rely on the policy language in denying defendants' motions. Instead it focused on the public policy issue. Furthermore, the doctrine does not apply where a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to CPLR 3212(c)(see Alvarado v City of New York, 150 AD3d 500, 500 [1st Dept 2017]; Rosen v Mosby, 148 AD3d 1228, 1233 [3d Dept 2017], lv dismissed 30 NY3d 1037 [2017]; 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]).
Even if the Court of Appeals' prior determination is viewed as addressing the contractual issue, "while the law of the case doctrine is intended to foster orderly convenience' . . ., it is not an absolute mandate which limits an appellate court's power to reconsider issues where there are extraordinary circumstances, such as subsequent evidence affecting the prior determination or a change of law'" (Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009]; see also Foley v Roche, 86 AD2d 887, 887 [1982], lv denied 56 NY2d 507 [1982] [holding that where the basis for a prior order had since been overruled by the Supreme Court of the United States and by the Court of Appeals, the law of the case doctrine can be ignored even though the prior order was from a higher court]). Here, the United States Supreme Court's decision in Kokesh, characterizing SEC disgorgement as a penalty, represents such a change of law.
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