Klein v. Auerbach, 2002-03790.

• Decision Date: 03 November 2003
• Docket Number: 2002-03790.
• Parties: SAMUEL J. KLEIN, Appellant, v. STEPHEN B. AUERBACH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 317

766 N.Y.S.2d 580

2003 NY Slip Op 18006

SAMUEL J. KLEIN, Appellant, v. STEPHEN B. AUERBACH et al., Respondents.

2002-03790.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 3, 2003.

In a shareholder's derivative action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff, Samuel J. Klein, suing as director of Cellular Design Corp., appeals from an order of the Supreme Court, Suffolk County (Klein, J.), dated March 22, 2002, which denied his motion, among other things, for partial summary judgment.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion. It is well settled that successive motions for summary judgment should not be made "in the guise of motions to renew where the new material could have been submitted with the original motion for summary judgment" (Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135 AD2d 685, 686 [1987] [internal quotation marks omitted]; see Rose v La Joux, 93 AD2d 817, 818 [1983]). In any event, there are triable issues of fact which preclude the granting of summary judgment (see Laxrand Constr. Corp. v R.S.C.A. Realty Corp., supra; Baron v Charles Azzue, Inc., 240 AD2d 447, 449 [1997]).

Santucci, J.P., Krausman, Townes and Cozier, JJ., concur.