Fifth Ave. Retail LLC v. 225 5th, LLC
| Decision Date | 09 February 2012 |
| Citation | 92 A.D.3d 471,2012 N.Y. Slip Op. 00899,937 N.Y.S.2d 852 |
| Parties | FIFTH AVENUE RETAIL LLC, Plaintiff–Respondent, v. 225 5TH, LLC, et al., Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Rosenberg & Estis, P.C., New York (Deborah E. Riegel of counsel), for appellants.
Shaw and Associates, New York (Martin Show of counsel), for respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 17, 2011, which denied defendants' motion to renew the parties' motions for partial summary judgment, unanimously affirmed, without costs. Appeal from order of reference, same court and Justice, entered February 17, 2011, unanimously dismissed, without costs, as abandoned.
In their license agreement, the parties expressly provided that substantial completion of the work would be determined by “Gardiner & Theobald Inc., Architect,” and that the determination would be binding. Plaintiff established its entitlement to partial summary judgment by submitting an affidavit by Tamela Johnson, a director of Gardiner & Theobald, attesting to the incomplete condition of the flue work (see 225 Fifth Ave. Retail LLC v. 225 5th, LLC, 78 A.D.3d 440, 915 N.Y.S.2d 1 [2010] ).
The “new” fact on which defendants' motion to renew was based is that Johnson is not an architect. However, defendants offered no reasonable justification for their failure to present this fact on the prior motion (CPLR 2221[e] [3] ). They could have discovered the nature of Gardiner & Theobald's business as a construction consulting firm, and Johnson's professional credentials, at the time the firm was named in their contract, or when Johnson's work was performed, and in any event, long before any motion practice was conducted. Accordingly, their belatedly-obtained information did not present the type of new evidence justifying a grant of renewal.
We have reviewed defendants' remaining arguments and find them unavailing.
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