Mid-State Elevator Co. v. Empire-Salina Associates

190 A.D.2d 1061

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Docket: Appeal No. 2
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: Defendants Benjamin Kasper and Richard Kasper sought leave to renew their opposition to plaintiffs motion for summary judgment by submitting "newly discovered evidence”. That evidence consisted of proof that the work was not performed in a workmanlike manner. They also contended that the records necessary to oppose the motion in the first instance were not in their possession by reason of their disassociation with defendant partnership. Because defendants’ renewal motion was predicated on a legal theory not advanced in opposition to the original motion and a defense not asserted in their answer, it was properly denied (see, Brookview Homeowners’ Assn. v Mark IV Constr. Co., 178 AD2d 967). Further, it was not an abuse of discretion to deny renewal based upon the unsupported assertion of the building manager that she gave notice to plaintiff of the partnership’s dissolution sometime subsequent to October 7, 1987. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Renewal.) Present — Callahan, J. P., Pine, Lawton, Boehm and Fallon, JJ.