HERMAN SOTO, Respondent, v CITY OF NEW YORK, Appellant
Appellate Division of the Supreme Court of the State of New York, Second Department
2006
832 N.Y.S.2d 573
Ordered that the order is affirmed, with costs.
While denominated a motion for leave to renew and reargue, the defendant‘s motion was actually its second motion for summary judgment. The defendant violated the rule against filing successive motions for summary judgment as the evidence, which derived from the deposition testimony of its own witness, and grounds submitted in the second motion, could have been submitted on the original motion (see Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2004]; Klein v Auerbach, 1 AD3d 317, 318 [2003]; Echeverri v Flushing Hosp. & Med. Ctr., 123 AD2d 818, 819 [1986]; Hirschfeld v Carpinello, 12 Misc 3d 749, 752 [2006]; cf. Staib v City of New York, 289 AD2d 560, 561 [2001]; Fielding v Environmental Resources Mgt. Group, 253 AD2d 713 [1998]; McIvor v Di Benedetto, 121 AD2d 519, 522 [1986]). Accordingly, the defendant‘s motion was properly denied.
Motion by the respondent on an appeal from an order of the Supreme Court, Kings County, dated March 30, 2005, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated March 7, 2006, that branch of the motion which was to dismiss the appeal was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,
Ordered that the branch of the motion which is to dismiss the appeal is denied.
Miller, J.P., Krausman, Fisher and Dillon, JJ., concur.