Capuano v. Platzner International Group, Ltd.

5 A.D.3d 620, 774 N.Y.S.2d 780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered December 12, 2002, which denied its motion for summary judgment dismissing the complaint and the plaintiff cross-appeals from the same order.

Ordered that the cross appeal is dismissed on the ground that the plaintiff is not aggrieved by the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant was previously denied summary judgment in this case and this Court affirmed that determination (see Capuano v Platzner Intl. Group, 260 AD2d 527 [1999]). 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 (see Klein v Auerbach, 1 AD3d 317 [2003]). In any event, there are issues of fact which preclude the granting of summary judgment.

In the exercise of our discretion we deny the plaintiffs application to impose a sanction against the defendant (see 22 NYCRR 130-1.1). Prudenti, P.J., Smith, Goldstein and Crane, JJ., concur.