Belrose Fire Suppression, Inc. v Stack McWilliams, LLC

Belrose Fire Suppression, Inc. v Stack McWilliams, LLC 2008 NY Slip Op 04289 [51 AD3d 485] May 8, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 16, 2008

Belrose Fire Suppression, Inc., Appellant,
v
Stack McWilliams, LLC, et al., Respondents.

—[*1] Mastropietro-Frade, LLC, New York (Manny A. Frade of counsel), for appellant.

Stroock & Stroock & Lavan, LLP, New York (Kevin L. Smith of counsel), for respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about June 7, 2007, which, to the extent appealed from as limited by the briefs in this action for breach of contract, granted defendants' motion to reargue and, upon reargument, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion in granting defendants' motion for reargument and determining that it had overlooked or misapprehended the relevant facts, and mistakenly arrived at its prior decision granting plaintiff partial summary judgment as to liability under the construction contract (see CPLR 2221 [d]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992]). Where a party fails to provide notice as required under a contract, "it is irrelevant whether the [terminating party] did, in fact, have the requisite cause to terminate the plaintiff's employment" (Kalus v Prime Care Physicians, P.C., 20 AD3d 452, 454 [2005]; see Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848, 850-851 [2003]). Here, however, the record shows that there are triable issues regarding the validity and timeliness of defendants' notice of termination, as well as whether plaintiff abandoned the project which, if later proven true, would remove defendants' obligation to comply with the notice provision of the contract (see U.S. Steel v M. DeMatteo Constr. Co., 315 F3d 43, 50 [2002]). Under these circumstances, the motion court properly found that the issues raised by the complaint and counterclaims were so inextricably interwoven that denial of summary judgment was warranted (see Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543, 544-545 [1994]). [*2]

We have considered plaintiff's remaining contentions and find them unavailing. Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.