Commercial Division Blog

Posted: August 2, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment, Breach of Contract, Declaratory Judgment

Court Rejects Successive Summary Judgment Motions

On July 12, 2023, Justice Andrea Masley of the New York County Commercial Division issued a decision in 600-602 10th Ave. Realty Corp. v. Estate of Nusimow, 2023 N.Y. Misc. LEXIS 3465.  The Court denied the Plaintiff’s motion for summary judgment, primarily on the basis that the same Plaintiff had moved for summary judgment on the same claims six years prior, which the Court had denied, finding issues of fact existed.  The Court explained:

ARC's first summary judgment motion is filed on the docket as motion sequence number 002. (NYSCEF 17, Notice of Motion [mot. seq. no. 002].) In motion sequence number 002, ARC moved for summary judgment on its declaratory judgment and breach of contract causes of action, the first and second causes of action in the FAC, respectively. On December 20, 2017, this court denied, in its entirety, ARC's motion as issues of fact precluded summary judgment. (NYSCEF 53, Decision and Order [mot. seq. no. 002].) Upon denial of ARC's summary judgment motion, ARC filed a notice of appeal to the Appellate Division, First Department (NYSCEF 57, Notice of Appeal); however, there is no indication that an appeal was actually filed or perfected with the Appellate Division. If there was a properly filed appeal, there is no decision from the First Department that has been submitted on this record or that the court is aware of. Thus, the court's decision on ARC's first summary judgment motion (motion sequence number 002), which denied summary judgment as issues of fact exist, stands. ARC filed a motion to renew its motion for summary judgment (NYSCEF 65, Notice of Motion [mot. seq. no. 004]) but ultimately withdrew that motion. (NYSCEF 82, So-Ordered Stipulation.)

In this second motion for summary judgment, ARC moves on the same causes of action in the same FAC.  ARC does not show "new factual assertions and evidence . . . or other sufficient cause shown for . . . making the second motion" (11 Essex St. Corp. v Tower Ins. Co. of New York, 81 AD3d 516, 516, 917 N.Y.S.2d 164 [1st Dept 2011] [citations omitted] [affirming denial of second summary judgment motion]), let alone mention the fact that it filed an earlier summary judgment motion in which a decision was rendered by the court six years ago. In fact, ARC's briefs (and the Nusimow Defendants' brief) are completely silent with regard to the fact that this court denied the first motion on the ground that issues of fact exist.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning making a motion for summary judgment, including the rule that successive motions for summary judgment are generally prohibited.