dissents in a memorandum as follows: In penning this brief dissent from the majority’s opinion ordering a new trial, it is necessary to state my view on this second appeal, that our opinion, expressed in connection with the first appeal that contributory negligence is a question of fact, is not the law of the case (cf. People v Palumbo, 79 AD2d 518). Based on the record on this appeal and as summarized in the majority’s memorandum, I am of the opinion that plaintiff’s failure to use due care by placing a recently used motorcycle gasoline tank on his kitchen sink next to a stove *504pilot light was wholly inexcusable and generated the series of events which led to his injuries. Plaintiff was guilty of contributory negligence as a matter of law (Townes v Park Motor Sales, 7 NY2d 767). I would dismiss the complaint.