On April 26, 2023, the Second Department issued a decision in 313 43rd St. Realty, LLC v. TMS Enters., LP, 2023 NY Slip Op. 02094, barring a second motion for summary judgment, explaining:
[T]he Supreme Court properly denied the buyer’s cross-motion for summary judgment. Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause. Evidence is not newly discovered simply because it was not submitted on the previous motion. 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. 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.
Here, although the deposition testimony of Terry Lazar, a principal of the sellers, was not elicited until after this Court’s decision and order holding that the buyer’s previous cross-motion for summary judgment should have been denied, the buyer failed to demonstrate that Lazar’s testimony established facts that were not available to the buyer at the time it made its previous cross-motion for summary judgment and which could not have been established through alternative evidentiary means. Accordingly, the Supreme Court properly denied the buyer’s second cross-motion.
(Internal quotations and citations omitted).