225 Fifth Ave. Retail LLC v 225 5th, LLC

225 Fifth Ave. Retail LLC v 225 5th, LLC 2012 NY Slip Op 00899 Decided on February 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 9, 2012
Saxe, J.P., Catterson, Moskowitz, Acosta, Renwick, JJ.
601659/07 6400A

[*1]6400-225 Fifth Avenue Retail LLC, Plaintiff-Respondent,

v

225 5th, LLC, et al., Defendants-Appellants.




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 AD3d 440 [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 [*2]information did not present the type of new evidence justifying a grant of renewal.

We have reviewed defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 9, 2012

CLERK