Opinion
September 22, 1992
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
Defendant argues that the IAS Court erred in granting plaintiff's motion for partial summary judgment because of the court's denial of a prior motion for summary judgment that had raised the same issues. Although, as a matter of policy, multiple summary judgment motions are discouraged in the absence of newly discovered evidence or "other sufficient cause" (Marine Midland Bank v Fisher, 85 A.D.2d 905, 906), the policy "has no application where, as here, the first motion, made before discovery, is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated" (Freeze Right Refrig. Air Conditioning Servs. v City of New York, 101 A.D.2d 175, 181). Plaintiff's evidence demonstrated his right to commissions earned in accordance with the amended agreement, under which defendant Miller is a guarantor, and Miller's failure, after discovery, to submit any evidence in support of his contentions in opposition thereto warranted the grant of partial summary judgment in favor of plaintiff.
Concur — Murphy, P.J., Rosenberger, Ross and Kassal, JJ.