When may one Appellate Division panel overturn a decision of another panel in a prior interlocutory appeal in the same case? That is the question in Lombardi v. Masso, in which the Supreme Court has just granted certification. The trial judge changed his mind sua sponte on a motion for summary judgment, saying that he realized he had erred. On the first appeal, the Appellate Division said that was improper. After remand, and a trial, another appeal led a different panel to the opposite conclusion, holding that revisiting a prior ruling “may be triggered literally by anything.”
Normally, the decision of one Appellate Division panel is not binding on another panel (the opposite is so in the Third Circuit Court of Appeals). But how does that rule fit together with the law of the case doctrine? The Supreme Court may provide some answers.