70th Street Apartments Corp. v. Phoenix Construction, Inc.

70th St. Apts. Corp. v Phoenix Constr., Inc. (2016 NY Slip Op 04127)

70th St. Apts. Corp. v Phoenix Constr., Inc.

2016 NY Slip Op 04127

Decided on May 31, 2016

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 on May 31, 2016
Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels, Gesmer, JJ.

161709/14 1296 103223/09

[*1]70th Street Apartments Corp., Petitioner-Respondent,

v

Phoenix Construction, Inc., Respondent-Appellant.



Phoenix Construction, Inc., Plaintiff-Appellant, -against-

v

70th Street Apartments Corp., Defendant-Respondent.

Friend & Reiskind, PLLC, New York (Edwin M. Reiskind, Jr. of counsel), for appellant.

Marin Goodman, LLP, Harrison (Alexander J. Drago of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Donna M. Mills, J.), entered March 4, 2015, which, in the second action, denied plaintiff Phoenix Construction, Inc.'s motion for leave to renew and reargue the parties' prior motions for summary judgment, unanimously dismissed, without costs, as taken from a nonappealable paper. Amended order, same court and Justice, entered March 30, 2015, which, in the first action, granted petitioner 70th Street Apartments Corp.'s motion to discharge

respondent Phoenix's mechanic's lien, unanimously affirmed, without costs.

Although Phoenix sought leave to renew and reargue the parties' prior motions for summary judgment in its action against 70th Street, the motion was actually a motion for leave to reargue, since it did not proffer any "new facts" in support of the motion (CPLR 2221[e][2]; see Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P., 82 AD3d 550, 551 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). We decline to consider the affidavit improperly submitted for the first time by Phoenix in reply to 70th Street's opposition. Accordingly, the motion court's denial of the motion is not appealable (see CPLR 5701[a][2][viii]; Prime, 82 AD3d at 551).

The motion court properly granted 70th Street's motion to discharge Phoenix's mechanic's lien, since the court was bound by its prior finding that Phoenix had released 70th [*2]Street from the lien (see People v Evans, 94 NY2d 499, 502 [2000]). It is not disputed that Phoenix had a full and fair opportunity to litigate the motion court's initial determination on this issue (id.).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 31, 2016

CLERK