Tillman v. Women's Christian Ass'n Hospital

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiffs motion to file and serve a second amended complaint and denied defendant’s cross motion seeking dismissal of the action with prejudice. Plaintiff commenced this action in August 1996 as executor of decedent’s estate seeking damages for injuries sustained by decedent when she fell out of a wheelchair in May 1995 at defendant’s premises. The court 980 thereafter determined that the amended complaint sounded in medical malpractice (see, Smee v Sisters of Charity Hosp., 210 AD2d 966) and, by order entered July 1, 1998, directed plaintiff to comply with CPLR 3012-a and 3406 (a). In October 1998, after plaintiffs appeal from the July order was dismissed, plaintiff sought leave to file and serve a second amended complaint alleging a negligence cause of action only. Defendant cross-moved to dismiss the action based on plaintiffs failure to comply with the July order. We reject defendant’s contention that the court was bound by its prior determination that the amended complaint sounds in medical malpractice because that determination became the law of the case. The doctrine of law of the case applies to the “ ‘same question in the same case’ ” (Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51 AD2d 140, 143; see, Siegel, NY Prac § 448, at 723 [3d ed]). Although the court previously resolved the question whether the amended complaint alleged a medical malpractice cause of action, the question here is whether the second amended complaint may be construed to allege a negligence cause of action (see, Kerker v Hurwitz, 163 AD2d 859, amended 166 AD2d 931; White v Sheehan Mem. Hosp., 119 AD2d 989). Any issue concerning the viability of that cause of action must await discovery (see, Edbauer v Harris Nursing Facility, 245 AD2d 1103). (Appeal from Order of Supreme Court, Chautauqua County, Ward, J. — Amend Pleading.) Present — Green, J. P., Wisner, Hurlbutt, Kehoe and Law-ton, JJ.