Otis Elevator Co. v. 1166 Avenue of Americas Condominium

• Decision Date: 18 October 1990
• Citation: 564 N.Y.S.2d 119,166 A.D.2d 307
• Parties: OTIS ELEVATOR COMPANY, Plaintiff-Respondent, v. 1166 AVENUE OF the AMERICAS CONDOMINIUM, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 119

564 N.Y.S.2d 119

166 A.D.2d 307

OTIS ELEVATOR COMPANY, Plaintiff-Respondent, v. 1166 AVENUE OF the AMERICAS CONDOMINIUM, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 18, 1990.

Before CARRO, J.P., and ROSENBERGER, KASSAL, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, (Irma Vidal Santaella, J.) entered on or about July 18, 1989, which granted plaintiff's motion pursuant to CPLR 3025 for leave to file an amended complaint, unanimously affirmed, with costs. Appeal from order of the same court entered on September 18, 1989, which denied defendant's motion for reargument, is dismissed as nonappealable, without costs.

The IAS Court properly granted plaintiff leave to amend its complaint to include two new causes of action for loss of future profits based on a theory of repudiation despite plaintiff's failure to serve notice of contract renewal in compliance with General Obligations Law § 5-903. The party opposing the motion to amend must overcome a heavy presumption of validity in favor of the moving party (Daniels v. Empire-Orr, Inc., 151 A.D.2d 370, 371, 542 N.Y.S.2d 614). Since the record shows that the defendant may be estopped from relying on GOL § 5-903 (see BWA Corp. v. Alltrans Express USA, 112 A.D.2d 850, 853, 493 N.Y.S.2d 1), it cannot be said that the new causes of action are insufficient.