EXCELSIOR 57th CORP. v. EXCEL ASSOC.

4050, 113665/09.

2017 NY Slip Op 04046

EXCELSIOR 57th CORP., Plaintiff-Appellant, v. EXCEL ASSOCIATES, Defendant-Respondent.

Appellate Division of the Supreme Court of New York, First Department.


Attorney(s) appearing for the Case

Kuzman Eisenberg Corbin & Lever, LLP, White Plains ( Fred D. Weinstein of counsel), for appellant.

Michael B. Kramer & Associates, New York ( Michael B. Kramer of counsel), for respondent.

Before: Tom, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.


Judgment, Supreme Court, New York County (Arthur Engoron, J.), entered August 22, 2016, in favor of defendant, and bringing up for review an order, same court and Justice, entered March 2, 2016, which, after a nonjury trial, declared that plaintiff was obligated to pay for structural repairs to a parking garage leased to defendant, unanimously affirmed, with costs.

The trial court properly declined to entertain expert evidence proffered by plaintiff seeking to establish that the routing and filling of cracks in the concrete slabs located in the parking garage constituted non-structural repairs that, under the parties' lease, were defendant's responsibility. This testimony was precluded by the doctrine of law of the case because the motion court, and this Court on a prior appeal (126 A.D.3d 479 [1st Dept 2015]), had previously found that these repairs constituted structural repairs of the garage, and were therefore plaintiff's responsibility (People v Evans, 94 N.Y.2d 499 [2000]; Martin v City of Cohoes, 37 N.Y.2d 162, 165 [1975]).

Based on the foregoing, it is unnecessary for us to reach plaintiff's remaining contention.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


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