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Second Summary Judgment Motion Properly Denied—Not Based on Newly Discovered Evidence

The Second Department affirmed Supreme Court’s denial of a motion for summary judgment because it was the second such motion and, although it included new deposition testimony, it did not include evidence that met the definition of “newly discovered:”

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . Although, in this context, newly discovered evidence may consist of “deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment” …, such 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… . Vinar v Litman, 2013 NY Slip Op 06675, 2nd Dept 10-16-13

 

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