Gannone v. Wittman

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered September 28, 1995, which, in an action pursuant to Business Corporation Law § 630 (a) by plaintiff Union to recover agáinst defendant shareholder unpaid contributions as to plaintiff’s welfare fund, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment, unanimously affirmed, without costs. Law of the case doctrine is not applicable here because the earlier motion was a motion to dismiss pursuant to CPLR 3211 while the instant motion is one for summary judgment (Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469). Since the unpaid services in question were performed between November 1, 1989 and August 1, 1990, and between October 1, 1990 and March 21, 1991, plaintiff, in order to comply with the 180-day notice requirement of the statute, had to service notice of intent on respondent by February 1, 1991 for the first period and by September 21, 1991 for the second period (see, Grossman v Sendor, 89 Misc 2d 952, 955, mod on other grounds 64 AD2d 561). Its failure to serve such notice until May 16, 1992 requires dismissal of the action. Concur— Milonas, J. P., Wallach, Kupferman, Tom and Andrias, JJ.