Excelsior 57th Corp. v. Excel Associates

2017 NY Slip Op 4046, 150 A.D.3d 540, 55 N.Y.S.3d 184

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2017
• Docket: 4050 113665/09
• Status: Published

Opinion

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.

Concur—Tom, J.P., Mazzarelli, Manzanet-Daniels and Webber, JJ.