Pervale Contracting, Inc. v. 32-36 West 18th Street Corp.
237 A.D.2d 229
| N.Y. App. Div. | 1997

Order and judgment (one paper), Supreme Court, New York County *230(Beatrice Shainswit, J.), entered January 4, 1996, which, inter alia, granted plaintiff general contractor’s motion for summary judgment as against defendant owner on its cause of action for breach of contract, and denied defendant owner’s cross motion for leave to serve an amended answer, and order, same court and Justice, entered August 13, 1996, which, insofar as appealable, denied defendant owner’s motion to renew, unanimously affirmed, with costs.

The motion court correctly determined that plaintiff had presented a prima facie case and that defendant’s speculative claim of "possible” double billings failed to raise an issue of fact. The motion to amend was properly denied for failure to show the merit of the proposed counterclaims, since there was no attempt to explain how the change orders relating to the second proposed counterclaim were duplicative and the other proposed counterclaims were totally unsubstantiated.

We need not determine whether the motion court misperceived the post-conviction statement of the union and pension fund official who had admitted receiving kickbacks from plaintiff. The court properly denied renewal since there was no justifiable excuse provided for the failure to submit such evidence on the original motion and the defense of illegality had never been pleaded.

We have considered defendant’s other contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Rubin and Andrias, JJ.