| Schenectady Steel Co., Inc. v Meyer Contr. Corp. |
| 2010 NY Slip Op 04357 [73 AD3d 1013] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Schenectady Steel Co., Inc., Respondent, v MeyerContracting Corp. et al., Appellants. |
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In an action to recover damages for breach of contract, the defendants appeal, (1) as limitedby their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.),dated March 3, 2009, as denied that branch of their motion which was for leave to renew theiropposition to that branch of the plaintiff's motion which was for summary judgment on so muchof the complaint as sought to recover damages in an amount that they allege represents the costsof completion of a construction project incurred by the defendant Meyer Contracting Corp. afterJune 21, 2002, which had been determined in an order of the same court dated October 30, 2008,and (2) an order and judgment (one paper) of the same court dated April 14, 2009, which, uponthe orders, inter alia, is in favor of the plaintiff and against them in the total sum of $79,063.36.The notice of appeal from the order dated March 3, 2009, is deemed also to be a notice of appealfrom the order and judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order dated March 3, 2009, is dismissed; and it is further,
Ordered that the order and judgment is reversed, on the law, on the facts, and in the exerciseof discretion, with costs, that branch of the defendants' motion which was for leave to renewtheir opposition to that branch of the plaintiff's motion which was for summary judgment on somuch of the complaint as sought to recover damages in an amount that the defendants allegerepresents the costs of completion of the subject construction project incurred by the defendantMeyer Contracting Corp. after June 21, 2002, is granted, upon renewal, the determination in theorder dated October 30, 2008, granting that branch of the plaintiff's motion is vacated and thatbranch of the plaintiff's motion is denied, and the orders dated October 30, 2008, and March 3,2009, are modified accordingly.
The appeal from the intermediate order dated March 3, 2009, must be dismissed because theright of appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are broughtup for review and have been considered on the appeal from the order and judgment (seeCPLR 5501 [a] [1]).[*2]
A motion for leave to renew must be supported by new oradditional facts "not offered on the prior motion that would change the prior determination," and"shall contain reasonable justification for the failure to present such facts on the prior motion"(CPLR 2221 [e] [2], [3]; see Barnett vSmith, 64 AD3d 669 [2009]; Chernysheva v Pinchuck, 57 AD3d 936 [2008]; Dinten-Quiros v Brown, 49 AD3d588 [2008]; Madison v Tahir,45 AD3d 744 [2007]).
In the instant dispute, the plaintiff and the defendant Meyer Contracting Corp. (hereinafterMeyer) entered into a contract on December 12, 2001, pursuant to which the plaintiff, assubcontractor, agreed to provide Meyer, as contractor, with steel and steel erection services inconnection with a school construction project. The contract recited that, if the plaintiff failed "inthe performance of any of the covenants" it was obligated to perform under the contract, Meyercould, at its option, "at any time after serving written notice of such default with direction to curein a specific period, such period not to be less than three (3) working days," compete the workitself upon the plaintiff's failure to cure its default. Contrary to the plaintiff's contentions, thedefendants proffered a reasonable justification for failing to submit evidence that it provide therequired three-day written notice to cure with their original papers.
While the notice and follow-up letters were available to the defendants at the time that theplaintiff's summary judgment motion was made, the issue of Meyer's failure to provide theplaintiff with three days written notice of default was not raised by the plaintiff until it submittedits reply papers. Moreover, the Supreme Court denied the motion for summary judgment,"without prejudice to renewal upon proof of the requisite notice." The rule requiring a reasonablejustification for the failure to submit relevant evidence on an initial motion is a flexible one, andwhether that evidence was available to a party is only one factor which may be considered. Themotion court may, in its discretion, grant renewal upon facts known to the movant at the time ofthe initial motion or petition if the movant offers a reasonable excuse for the failure to presentthose facts on the initial motion or petition (see Lawman v Gap, Inc., 38 AD3d 852 [2007]; Lafferty v Eklecco, LLC, 34 AD3d754 [2006]). Here, the Supreme Court initially granted the plaintiff's motion for summaryjudgment on the complaint without prejudice to the defendants' right to seek to renew theiropposition, and the defendants, on their motion for leave to renew, offered a reasonable excusefor not including the three-day notice to cure with their original opposition papers, namely, thatthe issue was first raised by the plaintiff in its reply papers submitted on the initial motion forsummary judgment.
By submitting the three-day notice to cure in connection with their motion for leave torenew, the defendants raised a triable issue of fact as to whether they were entitled to deduct,from the amount owed to the plaintiff under the contract, the sum of $33,616, which thedefendants allege represents the costs incurred by Meyer after June 21, 2002, for the completionof the construction project. Since there is a triable issue of fact as to whether this sum may bededucted, an award of summary judgment in favor of the plaintiff is precluded and, thus, the newfacts submitted on the defendants' motion for leave to renew "would change the priordetermination" (CPLR 2221 [e] [2]).
Thus, the Supreme Court improvidently exercised its discretion in failing to grant thatbranch of the defendants' motion which was for leave to renew and, upon renewal, in denyingsummary judgment to the defendants in connection with the alleged completion costs. Dillon,J.P., Florio, Leventhal and Roman, JJ., concur.