Opinion
2014-04-10
CHEROKEE OWNERS CORP., Plaintiff–Respondent, v. DNA CONTRACTING, LLC, et al., Defendants–Appellants, JMA Consultants, Inc., et al., Defendants.
Jaspan Schlesinger LLP, Garden City (Charles W. Segal of counsel), for appellants. Horowitz Sigmond LLP, New York (Carol A. Sigmond of counsel), for respondent.
Jaspan Schlesinger LLP, Garden City (Charles W. Segal of counsel), for appellants. Horowitz Sigmond LLP, New York (Carol A. Sigmond of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 15, 2013, which denied the motion of defendants DNA Contracting, LLC (contractor) and Vigilant Insurance Company for summary judgment dismissing the complaint as against them and awarding DNA judgment on its counterclaims, unanimously affirmed, with costs.
Defendant movants made a prima facie showing of entitlement to judgment as a matter of law by submitting the affidavit of an individual with personal knowledge who averred that defendant contractor's work was in accordance with the contract documents, drawings and specifications and that there were no overcharges. In opposition, plaintiff submitted evidence based on personal knowledge supporting its claim of defects in the work and other claimed breaches of the construction contract, thereby creating issues of fact. Plaintiff's claim against the contractor is not barred by law of the case ( cf. Matter of East 51st St. Crane Collapse Litig., 114 A.D.3d 611, 980 N.Y.S.2d 758 [1st Dept.2014] ). FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, GISCHE, CLARK, JJ., concur.