Ganvey Merchandising Corp. v. Church Warren Realty Corp.

176 A.D.2d 476, 574 N.Y.S.2d 556, 1991 N.Y. App. Div. LEXIS 12369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1991
• Status: Published

Opinion

— Order, Supreme Court, New York County (Carol Huff, J.), entered June 8,1990, which denied defendant’s motion for dismissal of the complaint pursuant to CPLR 3211 (a) (7), or alternatively for summary judgment pursuant to CPLR 3212, and order of the same court, entered on March 1, 1991, which, inter alia, denied defendant’s motion for summary judgment, or alternatively for renewal of the prior motion for summary judgment pursuant to CPLR 2221, unanimously affirmed, with costs.

In denying the first motion for summary judgment, the IAS Court rejected defendant’s reliance on a lease clause that defendant now admits is inapplicable to the present controversy. Defendant then reviewed the lease, determined that another clause was applicable, and moved for renewal of the prior motion for summary judgment, or alternatively, a new motion for summary judgment, with costs.

Renewal was properly denied, since it was based on facts that were or should have been known to the defendant at the time of its original motion for summary judgment (United States Life Ins. Co. v Burke Assocs., 162 AD2d 112). The IAS Court properly declined to allow the defendant, to bring a subsequent motion for the same relief (Curry v Nocket, 104 AD2d 435). In any event, an ambiguity in paragraph 52 of the lease creates an issue of fact (Eden Music Corp. v Times Sq. Music Publs. Co., 127 AD2d 161). Concur — Milonas, J. P., Ellerin, Asch and Rubin, JJ.