Opinion
16549 Index No. 650962/20 Case No. 2022–00950
10-27-2022
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.
Lazar Grunsfeld Elnadav, LLP, Brooklyn (Gerry Grunsfeld of counsel), for appellant.
Katsky Korins LLP, New York (Elan R. Dobbs of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.
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 A.D.3d 512, 512, 155 N.Y.S.3d 319 [1st Dept. 2021] ; Shomron v. Fuks, 147 A.D.3d 685, 687, 48 N.Y.S.3d 130 [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 A.D.3d 402, 123 N.Y.S.3d 594 [1st Dept. 2020] ).
In light of our determination, plaintiff's request to amend the complaint and consolidate with defendant's other action is academic.