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*360 Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered May 18, 2005, upon a jury verdict awarding plaintiff damages, and bringing up for review an order, same court and Justice, entered November 12, 2004, denying defendant-appellant’s motion for summary judgment, modified, to the extent of vacating the judgment and remanding for a new trial on the issue of damages at which recovery shall be limited to damages accruing prior to the expiration of the 1989 elevator maintenance contract on June 30, 1994, and otherwise affirmed, without costs.Appellant’s 2004 summary judgment motion was properly denied since it was not based on evidence unavailable at the time of appellant’s prior motion for the same relief (see e.g. Phoenix Four v Albertini, 245 AD2d 166 [1997]; Hapworth Med. Servs. v Kress, 218 AD2d 575 [1995]).
On a prior appeal (1 AD3d 240, 241 [2003]), this Court found that certain allegations in the complaint and certain interrogatory responses gave appellant “fair and timely notice” that plaintiff was putting the 1989 preventive maintenance contract in issue. In so doing, we necessarily rejected appellant’s now reiterated argument that plaintiff was required to move for leave to amend its complaint. However, the fact that the complaint was not amended to include breach of any subsequent agreement allows for recovery for the duration of the 1989 five-year maintenance contract only (see CPLR 3013; Sean M. v City of New York, 20 AD3d 146, 150 [2005]; cf. Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 354 [2005]).
The testimony of appellant’s employee, Robert Delaney, established a foundation for the first two pages of exhibit 13, which dealt with preventive maintenance (see People v Cratsley, 86 NY2d 81, 89 [1995]). Since “CPLR 4518 (a) is silent as to who, if anyone, must introduce a business record” (People v Kennedy, 68 NY2d 569, 577 [1986]), it does not matter that exhibit 13 was introduced into evidence during the subsequent testimony of Dr. Robert Grunes. Although a foundation was not established for the “Call Back Log” portion of exhibit 13, the error in admitting those pages was harmless, since it was clear from the trial testimony that callbacks differ from preventive maintenance.
*361 Appellant’s confusingly worded objection to Dr. Grunes’s opinion on preventive maintenance from 1989 to 1991 failed to preserve its current arguments. Were we to consider them, we would find that Gruñes had an adequate basis for his opinion and that the trial court properly exercised its discretion (see Gallo v Linkow, 255 AD2d 113, 117 [1998]) in permitting his opinion testimony on an issue of which appellant was well aware, even though it was not specifically mentioned in the CPLR 3101 (d) disclosure or Grunes’s expert report (see Reed v City of New York, 304 AD2d 1, 8-9 [2003], Iv denied 100 NY2d 503 [2003]).We have considered appellant’s remaining arguments and find them unavailing. Concur—Tom, J.P, Mazzarelli, Friedman and Buckley, JJ.
Document Info
Citation Numbers: 43 A.D.3d 359, 841 N.Y.S.2d 275
Judges: McGuire
Filed Date: 8/30/2007
Precedential Status: Precedential
Modified Date: 10/19/2024