Lower East Side II Associates, L.P. v. 349 E. 10th Street, LLC

Appellate Division of the Supreme Court of New York

Lower East Side II Associates, L.P. v. 349 E. 10th Street, LLC

118 A.D.3d 607, 987 N.Y.S.2d 842

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 2014

StatusPublished

This text of 118 A.D.3d 607 (Lower East Side II Associates, L.P. v. 349 E. 10th Street, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lower East Side II Associates, L.P. v. 349 E. 10th Street, LLC, 118 A.D.3d 607, 987 N.Y.S.2d 842 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 25, 2013, which denied defendant’s motion for leave to renew plaintiff’s motion for partial summary judgment on the issue of liability on its causes of action for encroachment and trespass, unanimously affirmed, with costs.

The court properly denied defendant’s motion for leave to renew, as the expert affidavit it submitted in support of the motion does not contain “new” facts unknown to defendant at the time of plaintiff’s prior motion (CPLR 2221 [e] [2]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [1st Dept 2001]). Indeed, defendant retained the expert two weeks before the due date of its opposition papers to plaintiffs motion, yet it failed to timely submit the affidavit. Moreover, it has not offered a reasonable justification for its failure (see CPLR 2221 [e] [3]).

In any event, the affidavit would not have changed the prior [608]*608determination (see CPLR 2221 [e] [2]).

Concur—Sweeny, J.P, Renwick, Andrias, Saxe and Kapnick, JJ.

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Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 25, 2013, which denied defendant’s motion for leave to renew plaintiff’s motion for partial summary judgment on the issue of liability on its causes of action for encroachment and trespass, unanimously affirmed, with costs.

The court properly denied defendant’s motion for leave to renew, as the expert affidavit it submitted in support of the motion does not contain “new” facts unknown to defendant at the time of plaintiff’s prior motion (CPLR 2221 [e] [2]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [1st Dept 2001]). Indeed, defendant retained the expert two weeks before the due date of its opposition papers to plaintiffs motion, yet it failed to timely submit the affidavit. Moreover, it has not offered a reasonable justification for its failure (see CPLR 2221 [e] [3]).

In any event, the affidavit would not have changed the prior [608]*608determination (see CPLR 2221 [e] [2]).

Concur—Sweeny, J.P, Renwick, Andrias, Saxe and Kapnick, JJ.

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Bluebook (online)

118 A.D.3d 607, 987 N.Y.S.2d 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lower-east-side-ii-associates-lp-v-349-e-10th-street-llc-nyappdiv-2014.

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