225 Fifth Avenue Retail LLC v. 225 5th, LLC

92 A.D.3d 471, 937 N.Y.2d 852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 2012
• Status: Published

Opinion

In their license agreement, the parties expressly provided that substantial completion of the work would be determined by “Gardiner & Theobald Inc., Architect,” and that the determination would be binding. Plaintiff established its entitlement to partial summary judgment by submitting an affidavit by Tamela Johnson, a director of Gardiner & Theobald, attesting to the incomplete condition of the flue work (see 225 Fifth Ave. Retail LLC v 225 5th, LLC, 78 AD3d 440 [2010]).

The “new” fact on which defendants’ motion to renew was based is that Johnson is not an architect. However, defendants offered.no reasonable justification for their failure to present this fact on the prior motion (CPLR 2221 [e] [3]). They could have discovered the nature of Gardiner & Theobald’s business as a construction consulting firm, and Johnson’s professional credentials, at the time the firm was named in their contract, or when Johnson’s work was performed, and in any event, long before any motion practice was conducted. Accordingly, their belatedly-obtained information did not present the type of new evidence justifying a grant of renewal.

We have reviewed defendants’ remaining arguments and find them unavailing. Concur — Saxe, J.P., Catterson, Moskowitz, Acosta and Renwick, JJ.