Schindler El. Corp. v 475 Park Ave. S., LLC

[*1] Schindler El. Corp. v 475 Park Ave. S., LLC 2015 NY Slip Op 50163(U) Decided on February 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570006/15

Schindler Elevator Corporation, Plaintiff-Appellant, -

against

475 Park Avenue South, LLC, Defendant-Respondent, - and - 475 Park Ave. So. Co. and 475 Building Company, LLC, Defendants.

Plaintiff appeals from that portion of an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered October 1, 2014, which granted the cross motion of defendant 475 Park Avenue South, LLC for summary judgment dismissing the complaint as against it.

Per Curiam.

Order (James E. d'Auguste, J.), entered October 1, 2014, insofar as appealed from, reversed, with $10 costs, cross motion denied, and complaint reinstated as against defendant 475 Park Avenue South, LLC.

This action, seeking payments allegedly due under an elevator maintenance agreement, is not ripe for summary dismissal. The belated and conclusory assertions of defendant 475 Park Avenue South, LLC (LLC), the building owner, that it was not a party to the underlying contract and that it "does not have any contractual relationship with the plaintiff," were insufficient to eliminate all triable issues (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), or warrant the grant of LLC's second successive motion for summary judgment (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]), particularly given LLC's admission in its original answer that it or its agent had "entered into" the agreement sued upon (see Imprimis Invs. v Insight Venture Mgt, 300 AD2d 109 [2002]; Matter of Beers v Incorporated Vil. of Floral Park, 262 AD2d 315 [1999]). That factual admission was not vitiated when, some six years after the filing of its original answer, LLC successfully moved to amend its answer to deny that it was a party to the agreement (see Kwiecinski v Chung Hwang, 65 AD3d 1443 [2009]). Despite the amendment, defendant's initial answer "remains admissible as an informal judicial admission, the circumstances of which may be explained at trial" (Bogoni v Friedlander, 197 AD2d 281, 293 [*2][1994], lv denied 84 NY2d 803 [1994]).

Nor did LLC address - much less explain - the nature or extent of its relationship with the similarly named defendant, 475 Park Ave. So. Co., whom LLC alleges is liable under the agreement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 25, 2015