On December 10, 2025, the Second Department issued a decision in Fox v. Nocella, 2025 NY Slip Op. 06848, holding that a decision on a preliminary injunction motion was not law of the case, explaining:
[T]he plaintiff made two motions, inter alia, for a preliminary injunction enjoining the defendants from selling insurance within five miles of the Agency’s address in Ronkonkoma. The defendants opposed the motions, contending, among other things, that the distance between the Agency and Main St. was five miles utilizing the highways as the most direct and fastest route. In an order dated June 28, 2021 (hereinafter the June 2021 order), the Supreme Court, inter alia, denied those branches of the plaintiff’s motions which were for a preliminary injunction.
In October 2021, the defendants cross-moved, among other things, in effect, for summary judgment dismissing the complaint and declaring that they did not breach the noncompete agreement. The defendants contended, inter alia, that the complaint should be dismissed based upon the doctrine of law of the case, because the June 2021 order had decided the issue of interpretation of the proximity language in the noncompete agreement. In an order dated April 19, 2022, the Supreme Court, among other things, granted that branch of the defendants’ cross-motion. The court stated that it had addressed and dismissed the plaintiff’s argument in the June 2021 order, and the plaintiff had not shown or alluded to newly discovered evidence or other sufficient cause necessary to oppose an award of summary judgment.” The plaintiff appeals.
The doctrine of law of the case only applies to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case. A] preliminary injunction is a provisional remedy and a decision concerning a preliminary injunction does not become the law of the case, nor would it constitute an adjudication on the merits so as to preclude reconsideration of that issue at a trial on the merits. Here, in the June 2021 order, the court only held that the defendants’ interpretation of the proximity language in the noncompete agreement was a reasonable interpretation that weighed against the plaintiff’s likelihood of success on the merits. As such, the June 2021 order was not a determination on the merits of the issue of the interpretation of the proximity language. Further, in view of the limited arguments raised on appeal, the issue of the interpretation of the proximity language is not currently before us.
(Internal quotations and citations omitted).