Opinion
October 6, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
We agree with the IAS Court that no issue of fact exists as to whether plaintiff's payment to defendants of the certificate of deposit in question, which had been assigned to third-party defendant with notice to plaintiff, was a mistake ( see, Manufacturers Hanover Trust Co. v. Chemical Bank, 160 A.D.2d 113, 117, lv denied 77 N.Y.2d 803). Plaintiff's second summary judgment motion was impliedly permitted by the denial of the first motion as premature, and moreover was based on new evidence gained by discovery that was explicitly anticipated in the first motion ( see, Smith v. Metropolitan Transp. Auth., 226 A.D.2d 168, lv denied 89 N.Y.2d 803, cert. denied sub nom. Smith v. Metro-North Commuter R. R., 520 U.S. 1186).
Concur — Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.