Decided December 21, 2010

Roddy v Nederlander Producing Co. of Am., Inc., 73 AD3d 583, reversed.

APPEARANCES OF COUNSEL

Queller, Fisher, Washor, Fuchs & Kool, LLP, New York City (Jonny Kool and Barry A. Washor of counsel), for appellant.

Law Offices of Charles J. Siegel, New York City (Robert S. Cypher, Jr., of counsel), for Nederlander Producing Company of America, Inc., and another, respondents.

Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for Abhann Productions, Inc., respondent.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiff's complaint as against defendants{**15 NY3d at 946} Nederlander Producing Company of America, Inc. and The [*2]Gershwin Theatre reinstated.

Plaintiff did not have a full and fair opportunity to litigate the issue of defendants' negligence. The issue of defendants' negligence was previously determined in an Appellate Division order granting defendants summary judgment on a third-party contractual indemnification claim against plaintiff's employer, third-party defendant Abhann Productions, Inc. Plaintiff had no interest in the outcome of the third-party indemnification claim. Plaintiff thus had neither incentive to litigate the motion for summary judgment nor adequate notice that the issue of defendants' negligence could be conclusively decided against him. Under these circumstances, the law of the case doctrine does not preclude plaintiff from litigating the issue of defendants' negligence.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.