Finkelstein v. Itkowitz & Harwood

Order, Supreme Court, New York County (Leland G. De-Grasse, J.), entered March 8, 2005, which, to the extent appealed from, granted defendants’ motion to reargue, and, upon reargument, denied plaintiffs motion for summary judgment, previously granted as to liability, unanimously affirmed, with costs. The initial grant of summary judgment as to liability was premised upon the motion court’s conclusion that defendant’s contractually based defense to plaintiffs claim for additional compensation had been waived. The court, however, properly recognized on reargument that it had overlooked evidence indicating that the purported waiver had not been made by one with authority to bind defendant financially. Inasmuch as that evidence raised triable issues as to whether the claimed waiver was in fact binding on defendant, summary judgment was properly denied (see Navillus Tile v Turner Constr. Co., 2 AD3d 209 [2003]; Frank v Katz, 145 AD2d 597 [1989]). Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.