BELROSE FIRE SUPPRESSION INC v. STACK McWILLIAMS LLC (2008)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about June 7, 2007, which, to the extent appealed from as limited by the briefs in this action for breach of contract, granted defendants' motion to reargue and, upon reargument, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion in granting defendants' motion for reargument and determining that it had overlooked or misapprehended the relevant facts, and mistakenly arrived at its prior decision granting plaintiff partial summary judgment as to liability under the construction contract (see CPLR 2221[d];  William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 [1992], lv. dismissed in part and denied in part 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812 [1992] ).   Where a party fails to provide notice as required under a contract, “it is irrelevant whether the [terminating party] did, in fact, have the requisite cause to terminate the plaintiff's employment” (Kalus v. Prime Care Physicians, P.C., 20 A.D.3d 452, 454, 799 N.Y.S.2d 115 [2005];  see Scudder v. Jack Hall Plumbing & Heating, 302 A.D.2d 848, 850-51, 756 N.Y.S.2d 330 [2003] ).   Here, however, the record shows that there are triable issues regarding the validity and timeliness of defendants' notice of termination, as well as whether plaintiff abandoned the project which, if later proven true, would remove defendants' obligation to comply with the notice provision of the contract (see U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 50 [2002] ).   Under these circumstances, the motion court properly found that the issues raised by the complaint and counterclaims were so inextricably interwoven that denial of summary judgment was warranted (see Boston Concessions Group v. Criterion Ctr. Corp., 200 A.D.2d 543, 544-545, 606 N.Y.S.2d 696 [1994] ).

We have considered plaintiff's remaining contentions and find them unavailing.