167 A.D.2d 501 | N.Y. App. Div. | 1990
In an action to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hentel, J.), entered June 6, 1989, as granted the plaintiff’s cross motion for summary judgment dismissing the defendants’ counterclaim, and denied that branch of the motion of the defendant, Anthony Melita, Jr., which was for summary judgment dismissing the complaint insofar as it is asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Anthony Melita, Jr., made a prior motion for summary judgment in 1986, which was denied as premature since there had yet to be any discovery. In his second motion, inter alia, for summary judgment, Mr. Melita merely resubmitted the same evidence as was submitted on the prior motion, and there has yet to be any further discovery. As a general rule, "[mjultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause” (La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518; see also, Lewis Constr. v Gush, 110 AD2d 1017). Moreover, “summary judgment is not justified where there are likely to be defenses that depend upon knowledge in the possession of the party moving for judgment, which might well be disclosed by cross-examination or examination before trial” (Terranova v Emil, 20 NY2d 493, 497; see also, Procter & Gamble Distrib. Co. v Lawrence Am. Field Warehousing Corp., 16 NY2d 344, 362; CPLR 3212 [f]). Thus, summary judgment was properly denied.
We also find that the defendants’ counterclaim was properly
