| Lower E. Side II Assoc., L.P. v 349 E. 10th St., LLC |
| 2014 NY Slip Op 04696 [118 AD3d 607] |
| June 24, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Lower East Side II Associates, L.P.,
Respondent, v 349 E. 10th Street, LLC, Appellant. |
Goldberg Weprin Finkel Goldstein LLP, New York (Eli Raider of counsel), for appellant.
Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 25, 2013, which denied defendant's motion for leave to renew plaintiff's motion for partial summary judgment on the issue of liability on its causes of action for encroachment and trespass, unanimously affirmed, with costs.
The court properly denied defendant's motion for leave to renew, as the expert affidavit it submitted in support of the motion does not contain "new" facts unknown to defendant at the time of plaintiff's prior motion (CPLR 2221 [e] [2]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [1st Dept 2001]). Indeed, defendant retained the expert two weeks before the due date of its opposition papers to plaintiff's motion, yet it failed to timely submit the affidavit. Moreover, it has not offered a reasonable justification for its failure (see CPLR 2221 [e] [3]).
In any event, the affidavit would not have changed the prior determination (see CPLR 2221 [e] [2]). Concur—Sweeny, J.P., Renwick, Andrias, Saxe and Kapnick, JJ.