Otis Elevator Co. v. 1166 Avenue of the Americas Condominium

Appellate Division of the Supreme Court of New York

Otis Elevator Co. v. 1166 Avenue of the Americas Condominium

166 A.D.2d 307, 564 N.Y.S.2d 119, 1990 N.Y. App. Div. LEXIS 12042

Appellate Division of the Supreme Court of the State of New York·Decided October 18, 1990·Published·Cited by 8 cases

Opinion

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on or about July 18, 1989, which granted plaintiffs motion pursuant to CPLR 3025 for leave to file an amended complaint, unanimously affirmed, with costs. Appeal from order of the same court entered on September 18, 1989, which denied defendant’s motion for reargument, is dismissed as nonappealable, without costs.

The IAS court properly granted plaintiff leave to amend its complaint to include two new causes of action for loss of future profits based on a theory of repudiation, despite plaintiffs failure to serve notice of contract renewal in compliance with General Obligations Law § 5-903. The party opposing the motion to amend must overcome a heavy presumption of validity in favor of the moving party (Daniels v Empire-Orr, Inc., 151 AD2d 370, 371). Since the record shows that the defendant may be estopped from relying on General Obligations Law § 5-903 (see, BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853), it cannot be said that the new causes of action are insufficient. Concur—Carro, J. P., Rosenberger, Kassal, Ellerin and Wallach, JJ.

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Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on or about July 18, 1989, which granted plaintiffs motion pursuant to CPLR 3025 for leave to file an amended complaint, unanimously affirmed, with costs. Appeal from order of the same court entered on September 18, 1989, which denied defendant’s motion for reargument, is dismissed as nonappealable, without costs.

The IAS court properly granted plaintiff leave to amend its complaint to include two new causes of action for loss of future profits based on a theory of repudiation, despite plaintiffs failure to serve notice of contract renewal in compliance with General Obligations Law § 5-903. The party opposing the motion to amend must overcome a heavy presumption of validity in favor of the moving party (Daniels v Empire-Orr, Inc., 151 AD2d 370, 371). Since the record shows that the defendant may be estopped from relying on General Obligations Law § 5-903 (see, BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853), it cannot be said that the new causes of action are insufficient. Concur—Carro, J. P., Rosenberger, Kassal, Ellerin and Wallach, JJ.

Otis Elevator Co. v. 1166 Avenue of the Americas Condominium, 166 A.D.2d 307, 564 N.Y.S.2d 119, 1990 N.Y. App. Div. LEXIS 12042 (N.Y. Ct. App. 1990).

Pincite

166 A.D.2d 307 (Otis Elevator Co. v. 1166 Avenue of the Americas Condominium) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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