Is a motion for summary judgment in a legal malpractice case timely or not?  One Supreme Court Justice says that it is, and one says that it is not?  is the first decision the law of the case or not?  Is the Appellate Division bound by an earlier decision?  How can two learned justices disagree with eachother?  Which is right?  How is that right decision to become law?

in Powell v Kasper ;2011 NY Slip Op 04027 ; Decided on May 10, 2011 ; Appellate Division, Second Department we see one deft answer.
 

"At the outset, the doctrine of the law of the case "applies . . . to legal determinations that were necessarily resolved on the merits in [a] prior decision" (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294 [internal quotation marks omitted]). Here, the order dated November 25, 2009, in effect, addressed the parties’ arguments as to whether Kasper’s summary judgment motion, originally filed on August 19, 2009, was timely pursuant to the parties’ stipulation. As such, upon Kasper’s resubmission of his summary judgment motion to Justice Kelly, the Supreme Court was barred from making a new determination on the issue of the motion’s timeliness (see Martin v City of Cohoes, 37 NY2d 162, 165; RPG Consulting, Inc. v Zormati, 82 AD3d 739; Baldasano v Bank of N.Y., 199 AD2d 184, 185). [*2]However, because the law of the case doctrine does not bind an appellate court (see Martin v City of Cohoes, 37 NY2d at 165; White Plains Plaza Realty, LLC v Town Sports Intl., LLC, 79 AD3d 1025, 1027; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1295), we must consider whether Kasper’s motion was untimely pursuant to the 90-day deadline set forth in the stipulation.

The stipulation provides, in pertinent part, that "[a]ny party may submit a summary judgment motion within 90 days following completion of EBTs." The record indicates that depositions were completed on April 24, 2009.

It is undisputed that Kasper did not file his original summary judgment motion until August 19, 2009, which was several weeks beyond the 90-day deadline set forth in the stipulation. As such, Kasper’s summary judgment motion was untimely pursuant to the terms of the stipulation (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727; Brill v City of New York, 2 NY3d 648, 652; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006). "