Opinion
October 3, 1991
Appeal from the Supreme Court, New York County (Carol Huff, J.).
In denying the first motion for summary judgment, the IAS Court rejected defendant's reliance on a lease clause that defendant now admits is inapplicable to the present controversy. Defendant then reviewed the lease, determined that another clause was applicable, and moved for renewal of the prior motion for summary judgment, or alternatively, a new motion for summary judgment, with costs.
Renewal was properly denied, since it was based on facts that were or should have been known to the defendant at the time of its original motion for summary judgment (United States Life Ins. Co. v. Burke Assocs., 162 A.D.2d 112). The IAS Court properly declined to allow the defendant, to bring a subsequent motion for the same relief (Curry v. Nocket, 104 A.D.2d 435). In any event, an ambiguity in paragraph 52 of the lease creates an issue of fact (Eden Music Corp. v. Times Sq. Music Publs. Co., 127 A.D.2d 161).
Concur — Milonas, J.P., Ellerin, Asch and Rubin, JJ.