Innovative Concepts & Design, LLC v. AL Infinity, LLC ( 2022 )

Innovative Concepts & Design, LLC v AL Infinity, LLC (2022 NY Slip Op 06066)

Innovative Concepts & Design, LLC v AL Infinity, LLC

2022 NY Slip Op 06066

Decided on October 27, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 27, 2022
Before: Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.

Index No. 650962/20 Appeal No. 16549 Case No. 2022-00950

[*1]Innovative Concepts and Design, LLC, Plaintiff-Appellant,

v

AL Infinity, LLC, Defendant-Respondent.

Lazar Grunsfeld Elnadav, LLP, Brooklyn (Gerry Grunsfeld of counsel), for appellant.

Katsky Korins LLP, New York (Elan R. Dobbs of counsel), for respondent.

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about February 23, 2022, which denied plaintiff's motion to renew its opposition to defendant's motion to dismiss the complaint, to amend its complaint, and to consolidate the action with another action commenced by defendant, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying the motion to renew. While the new evidence itself — documents produced in discovery in another action involving defendant — was not available at the time of the opposition to the motion to dismiss, the purportedly new facts on which plaintiff bases its renewal motion are not material and would not change the outcome of the prior determination (CPLR 2221[e][2]; see Casillas-Reyes v John, 200 AD3d 512, 512 [1st Dept 2021]; Shomron v Fuks, 147 AD3d 685, 687 [1st Dept 2017]). On the contrary, regardless of the information in the new documents, section 2.6 of the parties' agreement still bars the claim (see Trimarco v Edwards, 183 AD3d 402 [1st Dept 2020]).

In light of our determination, plaintiff's request to amend the complaint and consolidate with defendant's other action is academic.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 27, 2022