International Systems, a Division of Interedec (U.S.A.), Inc., et al., Respondents, v. Delcrete Corporation et al., Appellants. (And a Third-Party Action.)

International Systems, a Division of Interedec (U.S.A.), Inc., et al., Respondents, v Delcrete Corporation et al., Appellants. (And a Third-Party Action.) [MAJORITY] — Order unanimously reversed on the law without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Special Term erred in denying defendant’s motion for summary judgment solely on the law of the case doctrine. The order for a new trial by this court in International Sys. v Delcrete Corp. (103 AD2d 1008) does not necessarily imply that plaintiff has established a prima facie case (see, Garcia v City of New York, 104 AD2d 438, affd 65 NY2d 805; Barrett v State Mut. Life Assur. Co., 58 AD2d 320, affd 44 NY2d 872, cert denied 440 US 912). This court never passed upon the issue of sufficiency of notice under UCC 2-607 (3) (a). Thus, the merits of the motion and the sufficiency of the notice have still not been ruled upon. Where an issue has not been ruled upon by Special Term, this court will not review the issue on appeal (see, City of Rochester v Chiarella, 86 AD2d 110, 114, affd 58 NY2d 316; Omowale v State of New York, 72 AD2d 955, 956). (Appeal from order of Supreme Court, Monroe County, Pat-low, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Davis, JJ.