2470 Cadillac Resources, Inc. v DHL Express (USA), Inc.

2470 Cadillac Resources, Inc. v DHL Express (USA), Inc. 2012 NY Slip Op 01511 Decided on February 28, 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 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
6934 603613/08

[*1]2470 Cadillac Resources, Inc., et al., Plaintiffs-Appellants,

v

DHL Express (USA), Inc., Defendant-Respondent, Deutsche Post AG, Defendant.




Einbinder & Dunn, LLP, New York (Michael Einbinder of
counsel), and Phillips Nizer, LLP, New York (Jeremy
Richardson of counsel), for appellants.
Dechert LLP, New York (Edwin V. Woodsome of counsel), for
respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 21, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiffs' motion to renew defendant-respondent's motion to dismiss plaintiffs' first cause of action, for breach of contract, unanimously affirmed, with costs.

The IAS court properly determined that defendant's counterclaims are not new evidence that would alter its prior determination (CPLR 2221[e][2]). Indeed, the counterclaims restate allegations that were before the court on the prior motion and do not constitute an admission, or evidence, that plaintiffs are third-party beneficiaries of the reseller agreement (see 2470 Cadillac Resources, Inc. v DHL Express (USA), Inc., 84 AD3d 697, 698 [2011]).

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

ENTERED: FEBRUARY 28, 2012

CLERK