| Nassau County v Metropolitan Transp. Auth. |
| 2012 NY Slip Op 07193 [99 AD3d 617] |
| October 25, 2012 |
| Appellate Division, First Department |
| Nassau County, Appellant, v Metropolitan TransportationAuthority et al., Respondents. |
—[*1] Peter Sistrom, New York, for respondents.
Order and judgment (one paper), Supreme Court, New York County (Barbara R. Kapnick,J.), entered March 8, 2011, which granted defendants' motion for summary judgment dismissingthe complaint, ordered plaintiff to pay defendants $18,666,692.20 plus interest on theircounterclaims, and authorized defendants to undertake additional mass transportation capitalprojects and submit requisitions for such projects to plaintiff in an amount not to exceed $7.36million, unanimously affirmed, without costs. Order (same court and Justice), entered December5, 2011, which, insofar appealed as limited by the briefs, denied plaintiff's motion for renewal,unanimously affirmed, without costs.
Defendants' counterclaims are not barred by the statute of limitations. Their breach ofcontract counterclaim is based on plaintiff's (1) failure to pay requisitions that defendantMetropolitan Transportation Authority (MTA) submitted in August, October, November, andDecember 2001 and (2) use of the MTA Projects Fund in late 2007 to close a gap in plaintiff'sbudget. Clearly, these counterclaims were not barred in March 2001, when "the claims assertedin the complaint were interposed" (CPLR 203 [d]).
Nor are the counterclaims barred by laches. An essential element of laches is "unreasonableand inexcusable delay by the [counterclaim] plaintiff in undertaking to enforce his rights"(Dante v 310 Assoc., 121 AD2d 332, 334 [1st Dept 1986], lv denied 68 NY2d607 [1986]). There was no such delay here—plaintiff's lawyer admitted that "the parties,consensually, sat on their hands for six or eight years before anything was done." The record alsocontains a stipulation, signed by counsel for both sides, extending defendants' time to answer ormove until plaintiff demanded an answer or motion.
Plaintiff's argument that the grant of summary judgment was premature because no discoveryhad been conducted is unavailing (seee.g. Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605, 606 [1st Dept 2010], lvdenied 17 NY3d 713 [2011]). In opposition to defendants' motion, plaintiff did not claim thatit needed discovery. On the contrary, it said, "the salient facts are essentially undisputed."
Defendants' initial submissions established a prima facie case for breach of contract (see[*2]National Mkt. Share, Inc. v Sterling Natl. Bank, 392 F3d520, 525 [2d Cir 2004]; see also Harrisv Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). In violation of CPLR3015 (a), plaintiff's reply to defendants' counterclaims had merely stated, "The defendants havefailed to comply with a condition precedent." Therefore, defendants were not required toestablish, as part of their prima facie case, that they had complied with the condition precedentmentioned in section 2 (a) of the Mass Transportation Funding Agreement (see 1199 Hous. Corp. v International Fid.Ins. Co., 14 AD3d 383, 384 [1st Dept 2005]; contrast 1014 Fifth Ave. Realty Corp. vManhattan Realty Co., 67 NY2d 718, 719 [1986]).
In its opposition to defendants' summary judgment motion, plaintiff specified, for the firsttime, that section 2 (a) (plaintiff "shall not be under any obligation to make Project Contributionsunless it has acquired a leasehold or other interest in the Projects to which the ProjectContributions relate") was the condition precedent it had in mind. Defendants properly respondedto this argument in reply (see MerchantsBank of N.Y. v Gold Lane Corp., 28 AD3d 266, 267 [1st Dept 2006]; Sanford v27-29 W. 181st St. Assn., 300 AD2d 250, 251 [1st Dept 2002]). We also note thatdefendants' initial submissions included the Mass Transportation Funding Agreement, whichstates, "In connection with [plaintiff]'s leasehold or other interest in any of the Projects to which[defendant Long Island Rail Road Company (LIRR)] holds title, [plaintiff] shall enter into anagreement with the LIRR substantially in the form annexed as Appendix A." Defendants' initialsubmissions also included the said Appendix A, which is an unexecuted copy of a Lease andOperating Agreement between plaintiff and the LIRR. The unexecuted copy in defendants' initialsubmissions is substantively the same as the executed copy that defendants submitted with theirreply papers.
The court properly denied plaintiff's motion to renew. "Pursuant to CPLR 2221 (e) (2) and(3), a motion to renew 'shall be based upon new facts not offered on the prior motion that wouldchange the prior determination . . . and . . . shall contain reasonablejustification for the failure to present such facts on the prior motion' " (American Audio Serv. Bur. Inc. v AT & TCorp., 33 AD3d 473, 476 [1st Dept 2006]). In the case at bar, as in Foley vRoche (68 AD2d 558 [1st Dept 1979]), "no additional material facts are alleged" (id.at 568)—County Law § 215 (3), on which plaintiff relied in its renewal motion, isnot a new fact.
It is true that "the court, in its discretion, may . . . grant renewal, in the interestof justice, upon facts which were known to the movant at the time the original motion was made"(Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [1st Dept2001]). However, it was not an improvident exercise of discretion to refuse to grant aninterest-of-justice renewal in the instant case. The unexecuted Lease and Operating Agreement,which was included in defendants' moving papers, contains the same provisions about leaseduration as the executed contract. Plaintiff was a party to the Lease and Operating Agreement, sothe provision about lease duration should not have come as a surprise to it. It could have arguedin its opposition to defendants' summary judgment motion that the Lease and OperatingAgreement violated County Law § 215 (3). Renewal should not "be available where aparty has proceeded on one legal theory . . . and thereafter sought to move again ona different legal argument merely because he was unsuccessful upon the original application"(Foley, 68 AD2d at 568).
In any event, even if we were to consider plaintiff's argument that the Lease and OperatingAgreement violated County Law § 215 (3), "a party cannot insist upon a conditionprecedent, when its non-performance has been caused by himself" (A.H.A. Gen. Constr. vNew York City Hous. Auth., 92 NY2d 20, 31 [1998] [internal quotation marks omitted];see also [*3]Rachmani Corp. v 9 E. 96th St. Apt. Corp.,211 AD2d 262, 269 [1st Dept 1995]). Plaintiff's acquisition of a leasehold interest in the masstransportation projects was a condition precedent to its obligation to make Project Contributions.The Lease and Operating Agreement was supposed to give plaintiff such an interest. If the Leaseand Operating Agreement is invalid, it is because plaintiff passed an ordinance instead of a locallaw. Defendants should not be penalized for plaintiff's failure to follow proper procedures.Concur—Gonzalez, P.J., Moskowitz, Acosta, Freedman and Abdus-Salaam, JJ.