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Successive Summary Judgment Motions OK Based On Evidence Learned in Discovery

The Third Department noted that successive summary judgment motions are allowed where discovery turns up new evidence.  In this case summary judgment was granted to the defendants who were struck by plaintiff’s decedent’s vehicle which had crossed over into on-coming traffic:

Although successive summary judgment motions are generally discouraged absent “‘a showing of newly discovered evidence or other sufficient cause'” …, where, as here, evidence produced from additional discovery places the motion court “in a far better position to determine” a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion … . Foster v Kelly, 2014 NY Slip Op 05472, 3rd Dept 7-24-14

 

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THE CORRECTION LAW DOES NOT REQUIRE AN INMATE RESIDENTIAL TREATMENT FACILITY (RTF) TO PROVIDE SEX OFFENDERS WHO ARE ABOUT TO BE RELEASED WITH REINTEGRATION PROGRAMS IN THE OUTSIDE COMMUNITY, AS OPPOSED TO WITHIN THE PRISON (THIRD DEPT). ​
PLAINTIFF’S VERIFIED COMPLAINT WAS NOT ‘DOCUMENTARY EVIDENCE’ WITHIN THE MEANING OF CPLR 3211, DEFENDANT’S MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED BASED UPON ALLEGATIONS IN PLAINTIFF’S VERIFIED COMPLAINT (THIRD DEPT).
FAILURE TO INSTRUCT THE JURY THAT ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ALL THE RELATED LESSER COUNTS REQUIRED REVERSAL (THIRD DEPT).
PROBATION SENTENCE WHICH EFFECTIVELY EXTENDED THE PROBATION-PERIOD TO SIX YEARS WAS ILLEGAL (THIRD DEPT).
A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT). ​
EVEN WHERE PLAINTIFF CAN NOT DEMONSTRATE SERIOUS INJURY WITHIN THE MEANING OF THE NO-FAULT LAW, PLAINTIFF MAY BE ABLE TO RECOVER ECONOMIC LOSS ABOVE THE STATUTORY BASIC ECONOMIC LOSS ($50,000).
DEFENSE COUNSEL’S FAILURE TO REQUEST THAT THE JURY BE INSTRUCTED ON THE HEIGHTENED DEFINITION OF IMPAIRMENT DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; AT THE TIME OF THE TRIAL THERE WAS NO APPELLATE AUTHORITY FOR THE APPLICATION OF THE HEIGHTENED DEFINITION OF IMPAIRMENT IN ANY CONTEXT OTHER THAN VEHICULAR MANSLAUGHTER (THIRD DEPT).

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