Order insofar as appealed from modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint herein. Contrary to defendants’ argument, Supreme Court’s decision denying plaintiff’s motion for a preliminary injunction does not constitute the law of the case (see, Preston Corp. v Fabrication Enters., 68 NY2d 397, 402; Walker Mem. Baptist Church v Saunders, 285 NY 462, 474; Siegel, NY Prac § 448) and thus does not provide the predicate to establish defendants’ entitlement to summary judgment. Defendants otherwise failed to proffer evidentiary proof in admissible form "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).
However, Supreme Court did not err in denying plaintiff’s *988cross motion for summary judgment on its first cause of action seeking liquidated damages. Issues of fact exist whether the "amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” (Truck Rent-A-Center v Puritan Farms 2nd, 41 NY2d 420, 425).
All concur, except Doerr, J. P., who dissents in part and votes to affirm, in the following Memorandum.