225 Fifth Avenue Retail LLC v. 225 5th, LLC

*472In their license agreement, the parties expressly provided that substantial completion of the work would be determined by “Gardiner & Theobald Inc., Architect,” and that the determination would be binding. Plaintiff established its entitlement to partial summary judgment by submitting an affidavit by Tamela Johnson, a director of Gardiner & Theobald, attesting to the incomplete condition of the flue work (see 225 Fifth Ave. Retail LLC v 225 5th, LLC, 78 AD3d 440 [2010]).

The “new” fact on which defendants’ motion to renew was based is that Johnson is not an architect. However, defendants…