Vinar v. Litman

• Decision Date: 16 October 2013
• Citation: 110 A.D.3d 867,2013 N.Y. Slip Op. 06675,972 N.Y.S.2d 704
• Parties: Aleksander VINAR, respondent, v. John LITMAN, et al., defendants, Honig, Mongioi, Monahan and Sklavos LLP, et al., appellants (and another action).
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 867

972 N.Y.S.2d 704

2013 N.Y. Slip Op. 06675

Aleksander VINAR, respondent,

v. John LITMAN, et al., defendants,Honig, Mongioi, Monahan and Sklavos LLP, et al., appellants(and another action).

Supreme Court, Appellate Division, Second Department, New York.

Oct. 16, 2013.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Scott E. Kossove and Daniel M. Maunz of counsel), for appellants.

Daniel Berke, New York, N.Y., for respondent.

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for legal malpractice, fraud, and conversion, the defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C., appeal from so much of an order of the Supreme Court, Queens County (Lane, J.), dated February 14, 2012, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action alleging, inter alia, legal malpractice, fraud, and conversion. The defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C. (hereinafter collectively the attorney defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court concluded that their motion for summary judgment constituted their second motion for that relief, and denied it on the ground that they failed to identify the specific new evidence or sufficient cause that would justify the making of a successive summary judgment motion. On appeal, the attorney defendants contend, inter alia, that the court erred in denying their motion since their second summary judgment motion was premised on new evidence that was unavailable at the time of their initial motion.

“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 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;Levitz v. Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769). Although, in this context, newly discovered evidence may consist of “deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment” ( Auffermann v. Distl, 56 A.D.3d 502, 502, 867 N.Y.S.2d 527;see Coccia v. Liotti, 101 A.D.3d at 666, 956 N.Y.S.2d 63;Alaimo v. Mongelli, 93 A.D.3d 742, 743, 940 N.Y.S.2d 669;Staib v. City of New York, 289 A.D.2d 560, 735 N.Y.S.2d 799), such 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 ( 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;Rose v. La Joux, 93 A.D.2d 817, 818, 460 N.Y.S.2d 612;Graney Dev. Corp. v. Taksen, 62 A.D.2d 1148, 1149, 404 N.Y.S.2d 180;Harding v. Buchele, 59 A.D.2d 754, 755, 398 N.Y.S.2d 837;Abramoff v. Federal Ins. Co., 48 A.D.2d 676, 368 N.Y.S.2d 44;Powell v. Trans–Auto Sys., 32 A.D.2d 650, 300 N.Y.S.2d 747). Indeed, “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 Harding v. Buchele, 59 A.D.2d at 755, 398 N.Y.S.2d 837).

Here, contrary to the contention of the attorney defendants, the plaintiff's deposition testimony did not...