| Prime Income Asset Mgt., Inc. v American Real Estate HoldingsL.P. |
| 2011 NY Slip Op 01938 [82 AD3d 550] |
| March 17, 2011 |
| Appellate Division, First Department |
| Prime Income Asset Management, Inc., et al.,Appellants, v American Real Estate Holdings L.P. et al., Respondents. (And aThird-Party Action.) |
—[*1] Cozen O'Connor, New York (Kenneth G. Roberts of counsel), for respondents.
Judgment, Supreme Court, New York County (Barbara R. Kapnick, J.), entered January 29,2010, awarding defendants the sum of $916,754.10 on the first counterclaim pursuant to anorder, same court and Justice, entered December 22, 2008, which, inter alia, granted defendants'motion for summary judgment on the first counterclaim, and order, same court and Justice,entered May 11, 2010, which, insofar as appealed from, denied plaintiffs' motion for leave torenew, unanimously affirmed, with costs.
Supreme Court properly determined that plaintiffs failed to raise an issue of fact regardingdefendants' alleged waiver of their entitlement to the liquidated damages set forth in section 12(b) of the contract. Even if, as plaintiffs contend, the letter dated June 15, 2005 could rise to thelevel of a waiver of defendants' contractual right to seek liquidated damages, or constitute awritten amendment to the contract vitiating defendants' right to seek the liquidated damages, thesatisfaction of the condition set forth in section 12 (b) (iii) occurred on April 18, 2005, twomonths earlier. Supreme Court and this Court have already determined that the contractterminated then, and, under the law of the case doctrine, this is a determination which cannot berevisited (41 AD3d 176 [2007], lv dismissed 10 NY3d 740 [2008]; see People vEvans, 94 NY2d 499, 502-504 [2000]).
In any event, the letter does not rise to the level of "affirmative conduct" evincing a waiver ofdefendants' right to seek liquidated damages under section 12 (b) of the contract because itspecifically invokes an entirely different contractual provision—section 5 (b)—andnever mentions section 12 (b) (Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7NY3d 96, 104 [2006]). The letter cannot be construed as a "voluntary and intentionalabandonment" of the contractual right to seek liquidated damages (Matter of Lamberti v Angiolillo, 73AD3d 463, 463-464 [2010], lv denied 15 NY3d 711 [2010], quoting NassauTrust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).[*2]
Equally unavailing are plaintiffs' arguments that the letterconstituted a written amendment to the contract thereby waiving defendants' entitlement toliquidated damages. Section 18 of the contract requires amendments to be in writing and to beconsented to in writing. No such consent is alleged to have existed. Therefore, the letter cannotconstitute a contractual amendment. Moreover, it is undisputed that the letter was sent via e-mail,and section 17 requires that any such notices or amendments be "either delivered personally orsent by a nationally recognized overnight courier service" to specified addresses.
Supreme Court also properly denied plaintiffs' motion to renew for three reasons. First, it wasnot based upon "new facts" and therefore was actually a motion to reargue, the denial of which isnot appealable (CPLR 2221 [e] [2]; seeMcCoy v Metropolitan Transp. Auth., 75 AD3d 428, 430 [2010]). Second, plaintiffs'purported "justification" for not presenting the motion court with the allegedly new facts was not"reasonable" pursuant to CPLR 2221 (e) (3). Plaintiffs are charged with the duty to "exercise[ ]due diligence in making their first factual presentation" on a motion, and their own failure toapprise the motion court that they had received the deposits, which amounted to nearly onemillion dollars, well over two years earlier, was unjustified and unreasonable (Sobin v Tylutki, 59 AD3d 701,702 [2009]; see CPLR 2221 [e] [3]). Third, even if the facts were deemed "new" andplaintiffs had presented a "reasonable justification" for not offering them, those facts would stillnot "change the prior determination" (CPLR 2221 [e] [2]).
We have considered appellants' other contentions and find them unpersuasive.Concur—Gonzalez, P.J., Tom, Acosta, Richter and RomÁn, JJ.