Klein v. Auerbach

Appellate Division of the Supreme Court of New York

Klein v. Auerbach

1 A.D.2d 317, 766 N.Y.S.2d 580

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

DecidedNovember 3, 2003

StatusPublished

This text of 1 A.D.2d 317 (Klein v. Auerbach) 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

Klein v. Auerbach, 1 A.D.2d 317, 766 N.Y.S.2d 580 (N.Y. Ct. App. 2003).

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Opinion

In a shareholder’s derivative action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff, Samuel J. Klein, suing as director of Cellular Design Corp., appeals from an order of the Supreme Court, Suffolk County (Klein, J.), dated March 22, 2002, which denied his motion, among other things, for partial summary judgment.

[318]*318Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs motion. It is well settled that successive motions for summary judgment should not be made “in the guise of motions to renew where the new material could have been submitted with the original motion for summary judgment” (Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135 AD2d 685, 686 [1987] [internal quotation marks omitted]; see Rose v La Joux, 93 AD2d 817, 818 [1983]). In any event, there are triable issues of fact which preclude the granting of summary judgment (see Laxrand Constr. Corp. v R.S.C.A. Realty Corp., supra; Baron v Charles Azzue, Inc., 240 AD2d 447, 449 [1997]). Santucci, J.E, Krausman, Townes and Cozier, JJ., concur.

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In a shareholder’s derivative action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff, Samuel J. Klein, suing as director of Cellular Design Corp., appeals from an order of the Supreme Court, Suffolk County (Klein, J.), dated March 22, 2002, which denied his motion, among other things, for partial summary judgment.

[318]*318Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs motion. It is well settled that successive motions for summary judgment should not be made “in the guise of motions to renew where the new material could have been submitted with the original motion for summary judgment” (Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135 AD2d 685, 686 [1987] [internal quotation marks omitted]; see Rose v La Joux, 93 AD2d 817, 818 [1983]). In any event, there are triable issues of fact which preclude the granting of summary judgment (see Laxrand Constr. Corp. v R.S.C.A. Realty Corp., supra; Baron v Charles Azzue, Inc., 240 AD2d 447, 449 [1997]). Santucci, J.E, Krausman, Townes and Cozier, JJ., concur.

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Bluebook (online)

1 A.D.2d 317, 766 N.Y.S.2d 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-auerbach-nyappdiv-2003.

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