Edenwald Contracting Co. v. City of New York

Upon remittitur from the Court of Appeals ( 60 NY2d 957 ), the order of this court entered on August 26,1982 and its accompanying memorandum ( 89 AD2d 836 ) are recalled and vacated and the order of the Supreme Court, New York County (Ellerin, J.), entered on February 18, 1982 which, upon reargument and renewal, granted the city’s motion to amend its pleadings to assert the affirmative defense of waiver and release; granted the city’s motion for summary judgment and denied plaintiff’s cross motion for partial summary judgment, unanimously modified, on the law, to the extent of denying the city’s motion for summary judgment and remanding the matter for a trial on all issues, and the order is otherwise affirmed, without costs, f The facts here have been exhaustively set forth in our prior decision (supra) and by the Court of Appeals (supra). In view of that court’s conclusion (p 958) that “respondent did not show that it would suffer significant prejudice” if the city were allowed to amend its answer, a necessary element of laches has not been proven so as to justify denying the city’s motion to amend upon that basis. And since the Court of Appeals has determined (p 958) that “Trial Term did not abuse its discretion as a matter of law in permitting appellant to amend its answer to include the affirmative defense of waiver and release”, we modify our prior order and now affirm the order granting the city’s motion and denying partial summary judgment to plaintiff. It follows that our remittitur must likewise be amended to now direct a trial on the merits of all issues. Concur — Ross, J. P., Carro, Asch and Fein, JJ.