Merchants Bank v. Israel Discount Bank

—Order, Supreme Court, New York County (Myriam J. Altman, J.), entered December 29, 1992, which granted plaintiff’s motion for renewal, and upon renewal adhered to the court’s original decision denying plaintiff’s motion for summary judgment and granting defendant’s cross-motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. While a motion for leave to renew generally should be based upon newly discovered facts, the court was within its discretion to grant renewal where the evidence bore on the substance of the court’s prior ruling, an excuse was given, and the opposing party was not prejudiced (see, De Almeida v Finesod, 160 AD2d 491, 492). The court properly adhered to its earlier decision granting summary judgment since plaintiff failed to perform certain conditions precedent for indemnification by failing to deliver to defendant the notes properly endorsed and the reason for the notes’ return for nonpayment prior to the expiration of its terms. The court properly found that defendant did not prevent plaintiff from making the delivery and refused to construe the contract "to imply additional requirements” of signing for deliveries (Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594, 604). Nor does the letter of January 18, 1991, when read in context, constitute an anticipatory breach. In any event this argument was not raised on the original motion. Concur — Sullivan, J. P., Carro, Wallach, Kupferman and Tom, JJ.