THE PROMENADE v. [And Other Actions].

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

THE PROMENADE, etc., Plaintiff-Respondent, v. SCHINDLER ELEVATOR CORPORATION, etc., Defendant-Appellant, The Glick Organization, et al., Defendants. [And Other Actions].

Decided: August 30, 2007

TOM, J.P., MAZZARELLI, FRIEDMAN, BUCKLEY, McGUIRE, JJ. Arthur Russell, New York, for appellant. Kramer & Dunleavy, L.L.P., New York (Denise M. Dunleavy of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered May 18, 2005, upon a jury verdict awarding plaintiff damages, and bringing up for review an order, same court and Justice, entered November 12, 2004, denying defendant-appellant's motion for summary judgment, modified, to the extent of vacating the judgment and remanding for a new trial on the issue of damages at which recovery shall be limited to damages accruing prior to the expiration of the 1989 elevator maintenance contract on June 30, 1994, and otherwise affirmed, without costs.

Appellant's 2004 summary judgment motion was properly denied since it was not based on evidence unavailable at the time of appellant's prior motion for the same relief (see e.g. Phoenix Four v. Albertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 [1997];  Hapworth Med. Servs. v. Kress, 218 A.D.2d 575, 630 N.Y.S.2d 322 [1995] ).

On a prior appeal (1 A.D.3d 240, 768 N.Y.S.2d 435 [2003] ), this Court found that certain allegations in the complaint and certain interrogatory responses gave appellant “fair and timely notice” that plaintiff was putting the 1989 preventive maintenance contract in issue.   In so doing, we necessarily rejected appellant's now reiterated argument that plaintiff was required to move for leave to amend its complaint.   However, the fact that the complaint was not amended to include breach of any subsequent agreement allows for recovery for the duration of the 1989 five-year maintenance contract only (see CPLR 3013;  Sean M. v. City of New York, 20 A.D.3d 146, 150, 795 N.Y.S.2d 539 [2005];  cf. Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354, 797 N.Y.S.2d 434 [2005] ).

The testimony of appellant's employee, Robert Delaney, established a foundation for the first two pages of exhibit 13, which dealt with preventive maintenance (see People v. Cratsley, 86 N.Y.2d 81, 89, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ).   Since “CPLR 4518(a) is silent as to who, if anyone, must introduce a business record” (People v. Kennedy, 68 N.Y.2d 569, 577, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ), it does not matter that exhibit 13 was introduced into evidence during the subsequent testimony of Dr. Robert Grunes.   Although a foundation was not established for the “Call Back Log” portion of exhibit 13, the error in admitting those pages was harmless, since it was clear from the trial testimony that callbacks differ from preventive maintenance.

Appellant's confusingly worded objection to Dr. Grunes's opinion on preventive maintenance from 1989 to 1991 failed to preserve its current arguments.   Were we to consider them, we would find that Grunes had an adequate basis for his opinion and that the trial court properly exercised its discretion (see Gallo v. Linkow, 255 A.D.2d 113, 117, 679 N.Y.S.2d 377 [1998] ) in permitting his opinion testimony on an issue of which appellant was well aware, even though it was not specifically mentioned in the CPLR 3101(d) disclosure or Grunes's expert report (see Reed v. City of New York, 304 A.D.2d 1, 8-9, 757 N.Y.S.2d 244 [2003], lv. denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003] ).

We have considered appellant's remaining arguments and find them unavailing.

I agree with the majority's conclusion that the judgment must be vacated and a new trial held limited solely to the issue of the extent of the damages sustained by plaintiff, if any, as a result of breaches by defendant-appellant of the 1989 elevator maintenance contract, which commenced on July 1, 1989 and terminated on June 30, 1994.   I write separately with respect to a specific contention of appellant that the majority does not address.

On the prior appeal (1 A.D.3d 240, 768 N.Y.S.2d 435 [2003] ), this Court determined that the allegations in the complaint and plaintiff's responses to interrogatories gave appellant fair and timely notice that plaintiff was putting in issue the 1989 contract (id. at 241, 768 N.Y.S.2d 435).   I agree that, in doing so, we necessarily rejected appellant's contention that plaintiff was required to move for leave to amend its complaint. We did not, however, necessarily decide the issue of whether plaintiff also was permitted to recover damages for breaches of that contract which allegedly occurred after this action was commenced.   Accordingly, Supreme Court erred to the extent it ruled that the law of the case doctrine required denial of appellant's in limine motion to preclude evidence relating to alleged breaches occurring after the action was commenced.   Nevertheless, under the particular facts of this case, I agree that plaintiff may seek damages for post-commencement breaches of the 1989 contract;  appellant was, prior to trial, on notice of plaintiff's claim for these damages and extensive discovery with respect to this claim was conducted.

All concur except McGUIRE, J. who concurs in a separate memorandum as follows.