Opinion
2014-06-24
LOWER EAST SIDE II ASSOCIATES, L.P., Plaintiff–Respondent, v. 349 E. 10TH STREET, LLC, Defendant–Appellant.
Goldberg Weprin Finkel Goldstein LLP, New York (Eli Raider of counsel), for appellant. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for respondent.
Goldberg Weprin Finkel Goldstein LLP, New York (Eli Raider of counsel), for appellant. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 25, 2013, which denied defendant's motion for leave to renew plaintiff's motion for partial summary judgment on the issue of liability on its causes of action for encroachment and trespass, unanimously affirmed, with costs.
The court properly denied defendant's motion for leave to renew, as the expert affidavit it submitted in support of the motion does not contain “new” facts unknown to defendant at the time of plaintiff's prior motion (CPLR 2221[e] [2]; Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 376, 720 N.Y.S.2d 487 [1st Dept.2001] ). Indeed, defendant retained the expert two weeks before the due date of its opposition papers to plaintiff's motion, yet it failed to timely submit the affidavit. Moreover, it has not offered a reasonable justification for its failure ( seeCPLR 2221[e][3] ).
In any event, the affidavit would not have changed the prior determination ( seeCPLR 2221[e][2] ). SWEENY, J.P., RENWICK, ANDRIAS, SAXE, KAPNICK, JJ., concur.