City of New York v American Pipe & Tank Lining Co., Inc.

City of New York v American Pipe & Tank Lining Co., Inc. 2012 NY Slip Op 02800 Decided on April 17, 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 April 17, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ. 7394-
7395 401266/10

[*1]In re City of New York, Petitioner-Respondent,

v

American Pipe and Tank Lining Co., Inc., Claimant-Appellant.




Goldstein, Rikon & Rikon, P.C., New York (Jonathan
Houghton of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Rochelle
Cohen of counsel), and Carter Ledyard & Milburn LLP, New
York (John R. Casolaro of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 14, 2011, which denied the claimant's motion for an advance payment for the subject trade fixtures, and granted petitioner's cross motion for summary judgment dismissing the fixture claim, unanimously affirmed, without costs. Order, same court and Justice, entered May 20, 2011, which, to the extent appealed from as limited by the briefs, denied claimant's motion to renew, unanimously affirmed, without costs.

The documentary evidence demonstrates that claimant and nonparty 538-540 West 35th Corporation (538 Corporation), the latter of which owned the condemned real property at issue, were owned and controlled by the same person. As a result, the IAS court correctly held that claimant was not entitled to additional compensation for trade fixtures, since petitioner paid 538 Corporation for condemnation of the real property based on a determination that redevelopment, and disposal of the fixtures, is the highest and best use of the property (Matter of West Bushwick Urban Renewal Area Phase 2, 69 AD3d 176, 182-183 [2009]).

The motion to renew was correctly denied since claimant presented no reasonable justification for failing to present the "new facts" on the prior motion (CPLR 2221[e][3]; Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]; see also Cabrera v Gilpin, 72 AD3d 552, 553 [2010]). Contrary to claimant's contention, the issue of 538 Corporation's ownership was not raised for the first time at oral argument on the prior motions. In any event, the new documents and affidavits regarding ownership would not have changed the [*2]prior determination (CPLR 2221[e][2]).

We have considered claimant's remaining contentions and find them unavailing.

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

ENTERED: APRIL 17, 2012

CLERK