Opinion
2016-12823 Index No. 3336/14
08-07-2019
HILLRICH HOLDING CORP., Appellant, v. BMSL MANAGEMENT, LLC, et al., Defendants.
Tarter Krinsky & Drogin LLP, New York, N.Y. (Michael E. Camporeale of counsel), for appellant.
Tarter Krinsky & Drogin LLP, New York, N.Y. (Michael E. Camporeale of counsel), for appellant.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 4, 2016. The order denied the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants BMSL Management, LLC, and Omni Home, LLC.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action to foreclose a mortgage against the defendants. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants BMSL Management, LLC, and Omni Home, LLC. No opposition to the motion was filed. The Supreme Court denied the motion, concluding, in effect, that the motion violated the rule against successive motions for summary judgment. The plaintiff appeals.
"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" ( Sutter v. Wakefern Food Corp. , 69 A.D.3d 844, 845, 892 N.Y.S.2d 764 ; see Vinar v. Litman , 110 A.D.3d 867, 868, 972 N.Y.S.2d 704 ; Coccia v. Liotti , 101 A.D.3d 664, 666, 956 N.Y.S.2d 63 ; Powell v. Trans–Auto Sys. , 32 A.D.2d 650, 300 N.Y.S.2d 747 ). Evidence is not "newly discovered" simply because it was not submitted on the previous motion ( Sutter v. Wakefern Food Corp. , 69 A.D.3d at 845, 892 N.Y.S.2d 764 ). "Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means" ( Vinar v. Litman , 110 A.D.3d at 868–869, 972 N.Y.S.2d 704 ; see Pavlovich v. Zimmet , 50 A.D.3d 1364, 1365, 857 N.Y.S.2d 744 ; Capuano v. Platzner Intl. Group , 5 A.D.3d 620, 621, 774 N.Y.S.2d 780 ). "Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" ( Capuano v. Platzner Intl. Group , 5 A.D.3d at 621, 774 N.Y.S.2d 780 ; see Vinar v. Litman , 110 A.D.3d at 869, 972 N.Y.S.2d 704 ; Harding v. Buchele , 59 A.D.2d 754, 755, 398 N.Y.S.2d 837 ).
Here, the plaintiff failed to establish that the evidence it submitted in support of this motion for summary judgment was not available to it when it previously moved for summary judgment, and could not have been submitted on its prior motion. Accordingly, we agree with the Supreme Court's determination to deny the plaintiff's motion (see Vinar v. Litman , 110 A.D.3d at 869, 972 N.Y.S.2d 704 ; Pavlovich v. Zimmet , 50 A.D.3d at 1365, 857 N.Y.S.2d 744 ; Capuano v. Platzner Intl. Group , 5 A.D.3d at 621, 774 N.Y.S.2d 780 ).
RIVERA, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.