Pough v. Aegis Property Services Corp.

186 A.D.2d 52

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered on or about February 28, 1991, which in an action to recover brokerage commissions, granted plaintiff’s motion, inter alia, for partial summary judgment, unanimously affirmed, without costs.

Defendant argues that the IAS Court erred in granting plaintiffs motion for partial summary judgment because of the court’s denial of a prior motion for summary judgment that had raised the same issues. Although, as a matter of policy, multiple summary judgment motions are discouraged in the absence of newly discovered evidence or "other sufficient cause” (Marine Midland Bank v Fisher, 85 AD2d 905, 906), the policy "has no application where, as here, the first motion, made before discovery, is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated” (Freeze Right Refrig. & Air Conditioning Servs. v City of New York, 101 AD2d 175, 181). Plaintiffs evidence demonstrated his right to commissions earned in accordance with the amended agreement, under which defendant Miller is a guarantor, and Miller’s failure, after discovery, to submit any evidence in support of his contentions in opposition thereto warranted the grant of partial summary judgment in favor of plaintiff. Concur—Murphy, P. J., Rosenberger, Ross and Kassal, JJ.