Cromwell v. Le Sannom Building Corp. , 636 N.Y.S.2d 257 ( 1995 )

—Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about May 22, 1995, which, insofar as appealed from, denied defendant-appellant landlord’s motion to compel plaintiffs tenants to deposit into escrow unpaid use and occupancy for the period August 1991 through May 31, 1995, unanimously affirmed, without costs.

Contrary to defendant’s contention, law of the case does not mandate the back use and occupancy payments it seeks. The deterioration of the building is a new development since the prior order directing plaintiffs to pay monthly use and occupancy into escrow (see, Solow v Wellner, 186 AD2d 21; Holloway v Cha Cha Laundry, 97 AD2d 385, 386). The consequences of this change cannot be precisely assessed before trial but may entitle plaintiffs to a significant setoff against their liability for past use and occupancy. Concur — Murphy, P. J., Rosenberger, Ross, Nardelli and Mazzarelli, JJ.