Successive SJ

Greene v Sager, 2010 NY Slip Op 08068 (App. Div., 2nd 2010)

Prior to discovery, the Supreme Court denied a motion by the plaintiff and cross motion by the defendants for summary judgment. After discovery, the defendants submitted additional evidence and again moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court determined the motion and cross motion on the merits, noting that its previous order denying the parties' motions had been, in effect, without prejudice. Therefore, contrary to the plaintiff's contention, the defendants' motion did not offend the rule against successive motions for summary judgment (see Carella v Reilly & Assoc.,6 AD3d 373, 375; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39; cf. Sutter v Wakefern Food Corp., 69 AD3d 844, 845).