Opinion
05-31-2016
70TH STREET APARTMENTS CORP., Petitioner–Respondent, v. PHOENIX CONSTRUCTION, INC., Respondent–Appellant. Phoenix Construction, Inc., Plaintiff–Appellant, v. 70th Street Apartments Corp., Defendant–Respondent.
Friend & Reiskind, PLLC, New York (Edwin M. Reiskind, Jr. of counsel), for appellant. Marin Goodman, LLP, Harrison (Alexander J. Drago of counsel), for respondent.
Friend & Reiskind, PLLC, New York (Edwin M. Reiskind, Jr. of counsel), for appellant.
Marin Goodman, LLP, Harrison (Alexander J. Drago of counsel), for respondent.
Appeal from order, Supreme Court, New York County (Donna M. Mills, J.), entered March 4, 2015, which, in the second action, denied plaintiff Phoenix Construction, Inc.'s motion for leave to renew and reargue the parties' prior motions for summary judgment, unanimously dismissed, without costs, as taken from a nonappealable paper. Amended order, same court and Justice, entered March 30, 2015, which, in the first action, granted petitioner 70th Street Apartments Corp.'s motion to discharge respondent Phoenix's mechanic's lien, unanimously affirmed, without costs.
Although Phoenix sought leave to renew and reargue the parties' prior motions for summary judgment in its action against 70th Street, the motion was actually a motion for leave to reargue, since it did not proffer any “new facts” in support of the motion (CPLR 2221[e][2] ; see Prime Income Asset Mgt., Inc. v. American Real Estate Holdings L.P., 82 A.D.3d 550, 551, 918 N.Y.S.2d 467 [1st Dept.2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535253 [2011] ). We decline to consider the affidavit improperly submitted for the first time by Phoenix in reply to 70th Street's opposition. Accordingly, the motion court's denial of the motion is not appealable (see CPLR 5701[a][2][viii] ; Prime, 82 A.D.3d at 551, 918 N.Y.S.2d 467 ).
The motion court properly granted 70th Street's motion to discharge Phoenix's mechanic's lien, since the court was bound by its prior finding that Phoenix had released 70th Street from the lien (see People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ). It is not disputed that Phoenix had a full and fair opportunity to litigate the motion court's initial determination on this issue (id. ).
TOM, J.P., MAZZARELLI, ANDRIAS, MANZANET–DANIELS, GESMER, JJ., concur.