in a separate memorandum as follows: I agree with the majority’s conclusion that the judgment must be vacated and a new trial held limited solely to the issue of the extent of the damages sustained by plaintiff, if any, as a result of breaches by defendant-appellant of the 1989 elevator maintenance contract, which commenced on July 1, 1989 and terminated on June 30, 1994. I write separately with respect to a specific contention of appellant that the majority does not address.
On the prior appeal (1 AD3d 240 [2003]), this Court determined that the allegations in the complaint and plaintiffs responses to interrogatories gave appellant fair and timely notice that plaintiff was putting in issue the 1989 contract (id. at 241). I agree that, in doing so, we necessarily rejected appellant’s contention that plaintiff was required to move for leave to amend its complaint. We did not, however, necessarily decide the issue of whether plaintiff also was permitted to recover damages for breaches of that contract which allegedly occurred after this action was commenced. Accordingly, Supreme Court erred to the extent it ruled that the law of the case doctrine required denial of appellant’s in limine motion to preclude evidence relating to alleged breaches occurring after the action was commenced. Nevertheless, under the particular facts of this case, I agree that plaintiff may seek damages for postcommencement breaches of the 1989 contract; appellant was, prior to trial, on notice of plaintiff’s claim for these damages and extensive discovery with respect to this claim was conducted.