Schriptek Marketing Inc. v. Columbus McKinnon Corp.
| Decision Date | 05 November 1992 |
| Citation | 589 N.Y.S.2d 656,187 A.D.2d 800 |
| Parties | SCHRIPTEK MARKETING INC., Appellant, v. COLUMBUS McKINNON CORPORATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Grasso, Rodriguez, Putorti & Grasso (Lawrence Zyra, of counsel), Schenectady, for appellant.
Phillips, Lytle, Hitchcock, Blaine & Huber (William L. Rieth, of counsel), Buffalo, for respondent.
Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.
Appeal from an order of the Supreme Court (Conway, J.), entered August 21, 1991 in Albany County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff is engaged in consulting, marketing and selling in connection with the business of tire recycling, shredding and resource recovery. In late 1982 defendant was seeking new business opportunities due to its shrinking business and an underemployed facility which manufactured heavy equipment. It is undisputed that plaintiff introduced defendant to the concept of tire shredding and that plaintiff's representative, Edward Monsoor, provided defendant with information about the technology, potential market and overall business of the tire shredding industry to interest defendant in a business venture with plaintiff. In May 1983 defendant executed a secrecy agreement which provided:
Whereas [plaintiff] has certain proprietary information and knowledge concerning tire shredding and disposal of the shredded product and will share this information and knowledge with [defendant], a potential investor, for the purpose of understanding the investment[, defendant], its affiliates, assigns and successors in interest, agrees [sic ] to keep confidential all such knowledge and information so disclosed and to not use the information in any business venture other than with [plaintiff] or to disclose the information to any other party without the express written consent of [plaintiff].
In June 1983, after further discussions with Monsoor, defendant advised plaintiff that it was not interested in a monetary investment in plaintiff's proposal, but was interested in exploring the possibility of manufacturing tire shredders. In August 1983 defendant proposed an agreement whereby plaintiff would sell or lease tire shredders manufactured by defendant. Plaintiff proposed a counteragreement. Neither agreement was executed.
In November 1983, defendant formed a new division in preparation of entering into the tire shredder business and sometime thereafter it began to manufacture and market tire shredders. Plaintiff alleges that during this period Monsoor continued to provide defendant with information concerning the tire shredding industry. Finally, by letter dated March 5, 1986, defendant informed plaintiff that it had "no interest in pursuing further with you those things which you claim to know, or have information on, regarding the sale of shredding equipment".
Plaintiff thereafter commenced this action, asserting several causes of action based upon breach of contract, fraud and misappropriation of trade secrets. After issue was joined, defendant moved for summary judgment and Supreme Court denied the motion. Following the completion of discovery, defendant again moved for summary judgment. Supreme Court granted the motion and dismissed the complaint, resulting in this appeal by plaintiff.
Plaintiff contends that Supreme Court's denial of defendant's first summary judgment motion required the court to deny the second motion as well. We disagree. The denial of a motion for summary judgment has little preclusive effect (see, Zook v. Hartford Acc. & Ind. Co., 64 A.D.2d 701, 702, 407 N.Y.S.2d 570; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:21, at 327). Rather, the courts have adopted a policy which discourages multiple summary judgment motions in the same action in the absence of newly discovered evidence or other sufficient cause (Manning v. Turtel, 135 A.D.2d 511, 511-512, 522 N.Y.S.2d 13; La Freniere v. Capital Dist. Transp. Auth., 105 A.D.2d 517, 518, 481 N.Y.S.2d 467). Where, as here, the second motion is based upon new information obtained during disclosure, the second motion is not repetitive of the first and the court may rule on the merits of the second motion ( see, Beagan v. Manhattanville Nursing Care Center, 176 A.D.2d 633, 635, 575 N.Y.S.2d 70, lv. denied 79 N.Y.2d 753, 581 N.Y.S.2d 281, 589 N.E.2d 1263).
Turning to the merits, plaintiff concedes that the basis for this action is defendant's alleged violation of the secrecy agreement whereby...
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