Davidson Metals Corp. v. Marlo Development Co.

Appellate Division of the Supreme Court of New York

Davidson Metals Corp. v. Marlo Development Co.

262 A.D.2d 599, 691 N.Y.S.2d 898

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1999

StatusPublished

This text of 262 A.D.2d 599 (Davidson Metals Corp. v. Marlo Development Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davidson Metals Corp. v. Marlo Development Co., 262 A.D.2d 599, 691 N.Y.S.2d 898 (N.Y. Ct. App. 1999).

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Opinion

—In an action, inter alia, to recover damages for breach of contract, the defendants appeal-from stated portions of an order, of the Supreme Court, Nassau County (Joseph, J.), dated May 28, 1998, which, inter alia, denied their cross motion, among other things, for summary judgment dismissing the complaint, or, for leave to serve an amended answer.

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

The Supreme Court properly denied the defendants’ cross motion, inter alia, for summary judgment dismissing the complaint. This cross motion was the fourth motion for dismissal of the breach of contract cause of action, and the second summary judgment motion, in this case, and it violated the general proscription against successive summary judgment motions absent “a showing of newly discovered evidence or other sufficient cause” (Marine Midland Bank v Fosher, 85 AD2d 905, 906; see, Taylor v Brooklyn Hosp., 187 AD2d 714). Moreover, there are material issues of fact which preclude the granting of summary judgment.

The Supreme Court properly exercised its discretion in denying that branch of the defendants’ motion which was for leave to amend their answer on the eve of trial in this nearly four year-old case to assert “questionable” affirmative defenses which would prejudice the plaintiff (see, Glorioso v DeBlasio, 227 AD2d 588).

The defendants’ request for sanctions and treble damages is without merit. Mangano, P. J., Sullivan, Goldstein and Mc-Ginity, JJ., concur.

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—In an action, inter alia, to recover damages for breach of contract, the defendants appeal-from stated portions of an order, of the Supreme Court, Nassau County (Joseph, J.), dated May 28, 1998, which, inter alia, denied their cross motion, among other things, for summary judgment dismissing the complaint, or, for leave to serve an amended answer.

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

The Supreme Court properly denied the defendants’ cross motion, inter alia, for summary judgment dismissing the complaint. This cross motion was the fourth motion for dismissal of the breach of contract cause of action, and the second summary judgment motion, in this case, and it violated the general proscription against successive summary judgment motions absent “a showing of newly discovered evidence or other sufficient cause” (Marine Midland Bank v Fosher, 85 AD2d 905, 906; see, Taylor v Brooklyn Hosp., 187 AD2d 714). Moreover, there are material issues of fact which preclude the granting of summary judgment.

The Supreme Court properly exercised its discretion in denying that branch of the defendants’ motion which was for leave to amend their answer on the eve of trial in this nearly four year-old case to assert “questionable” affirmative defenses which would prejudice the plaintiff (see, Glorioso v DeBlasio, 227 AD2d 588).

The defendants’ request for sanctions and treble damages is without merit. Mangano, P. J., Sullivan, Goldstein and Mc-Ginity, JJ., concur.

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262 A.D.2d 599, 691 N.Y.S.2d 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-metals-corp-v-marlo-development-co-nyappdiv-1999.

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