Excelsior 57th Corp. v Excel Assoc.

Excelsior 57th Corp. v Excel Assoc. 2017 NY Slip Op 04046 Decided on May 18, 2017 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 May 18, 2017
Tom, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.
4050 113665/09

[*1]Excelsior 57th Corp., Plaintiff-Appellant,

v

Excel Associates, Defendant-Respondent.

Kuzman Eisenberg Corbin & Lever, LLP, White Plains (Fred D. Weinstein of counsel), for appellant.

Michael B. Kramer & Associates, New York (Michael B. Kramer of counsel), for respondent.

Judgment, Supreme Court, New York County (Arthur Engoron, J.), entered August 22, 2016, in favor of defendant, and bringing up for review an order, same court and Justice, entered March 2, 2016, which, after a nonjury trial, declared that plaintiff was obligated to pay for structural repairs to a parking garage leased to defendant, unanimously affirmed, with costs.

The trial court properly declined to entertain expert evidence proffered by plaintiff seeking to establish that the routing and filling of cracks in the concrete slabs located in the parking garage constituted non-structural repairs that, under the parties' lease, were defendant's responsibility. This testimony was precluded by the doctrine of law of the case because the motion court, and this Court on a prior appeal (126 AD3d 479 [1st Dept 2015]), had previously found that these repairs constituted structural repairs of the garage, and were therefore plaintiff's responsibility (People v Evans, 94 NY2d 499 [2000]; Martin v City of Cohoes, 37 NY2d 162, 165 [1975]).

Based on the foregoing, it is unnecessary for us to reach plaintiff's remaining contention.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 18, 2017

CLERK