On December 16, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Brooklyn 5511 Mgt. LLC v. Hang Feng 5511 LLC, 2024 NY Slip Op. 34372(U), denying a motion for summary judgment based on the single motion rule, explaining:
It is well settled that 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. Thus, where the party sufficiently demonstrates that evidence was not available to it when the first summary judgement motion was filed then a successive motion is proper.
Therefore, any testimony or affidavit of any member of the defendant, the prior movant, is insufficient to constitute new evidence since it was readily available when the first summary judgement motion was filed.
Moreover, concerning the deposition of Mr. To, which took place after the motion for summary judgement was filed, the case of Perretta v. New York City Transit Authority, 230 AD3d 428, 217 NYS3d 30 [1st Dept., 2024] is instructive. In that case the plaintiff, Kathleen Perretta filed a summary judgement motion before the conclusion of all discovery. The court explained that in her rush to obtain summary judgment and to avoid the inevitable delays in discovery that resulted from the COVID-19 pandemic restrictions, plaintiff chose to rely on FOIL responses, believing that her submissions would be sufficient. Summary judgement was denied and the parties proceeded with discovery. Following all discovery the plaintiff again moved seeking summary judgement. In denying the request the court held that her motion was not denied without prejudice nor was she granted leave to renew after discovery was completed. Having made these choices in the litigation, she cannot now be heard to complain that she was unable to obtain the evidence necessary to support her prior motion for summary judgment. Further, the court explained that plaintiff’s renewal motion is a second attempt at summary judgment on liability, which was denied by the court on her first motion. Her first motion was premature. She should have waited for the completion of discovery before moving for summary judgment and her renewal motion should not be granted unless the new facts resolve or eliminate the factual issues found by the court in denying her first motion.
Likewise, in this case, the motion seeking summary judgement was filed less than two months after the amended complaint was filed, without any discovery at all. The defendant cannot at this juncture assert the deposition testimony of Mr. To is now new and sufficient to warrant granting summary judgement. Nor does the deposition testimony of Mr. To eliminate all questions of fact. Thus, it is improper to seek renewal of a summary judgement based upon deposition testimony, when no explanation has been presented why the deposition could not have taken place prior to the submission of the motion.
A successive motion for summary judgement would be appropriate where the successive motion raises different arguments and adduces evidence that was truly not available at the time the first motion for summary judgment was filed or is predicated upon events which occurred after the original motion for summary judgment was filed or where the motion is based on a decision of the court of appeals rendered after denial of the first motion. Alternatively, a successive motion would be proper where the motion is made after the completion of discovery and involves legal issues not previously decided.
As noted, in this case the first summary judgement was prematurely filed before any discovery took place. That strategic litigation tactic cannot permit successive summary judgement motions to be filed based upon simple deposition testimony that should have preceded the summary judgement motion.
Therefore, the motion seeking summary judgement is denied.
(Internal quotations and citations omitted).