Jerry B. Wilson Roofing & Painting, Inc. v. JOBCO—E. R. Kelly Associates, Inc.

Motion for reargument of decision dated March 12, 1987. When this appeal was previously before us, we modified a judgment in favor of plaintiff Wilson Roofing, Inc., by reversing so much thereof as awarded said plaintiff the balance due on the separate roofing contracts for the K-Mart and main mall buildings, remitting the matter to Supreme Court for a new trial on the issue of damages, and, as so modified, affirmed (Wilson Roofing & Painting v Jobco—Kelly Assocs., 128 AD2d 953). Plaintiff Wilson Roofing, Inc. (hereinafter plaintiff) now moves for reargument. Defendant Jobeo—E. R. Kelly Associates, Inc. (hereinafter Jobeo) cross-moves for reargument, or, in the alternative, for permission to appeal to the Court of Appeals. By this motion for reargument, plaintiff in effect seeks to expand the record on appeal to include the postverdict decision of the trial court and the interrogatories that were submitted to the jury in order to establish that the trial court has already determined that Jobeo suffered no damages as a result of plaintiff’s performance of the roofing jobs on the K-Mart and mall roofs. It is thus argued by plaintiff that remittal for a new trial is unnecessary. However, plaintiff fails [973] to adequately explain why these additional documents were not included in the record on appeal, the completeness of which plaintiff failed to object to, and we are of the view that plaintiff may not expand the record on appeal on this motion for reargument. Accordingly, we conclude that plaintiffs motion for reargument should be denied without prejudice to a motion to the trial court for final judgment on the ground that the issue of damages has already been determined at the previous trial. We are also of the opinion that Jobco’s cross motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals should be denied. Motion for reargument denied, without costs and without prejudice to a motion to the trial court for final judgment in accordance with this decision. Cross motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals denied, without costs. Main P. J., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.