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Vinar v. Litman
Factual and Procedural Background
The plaintiff, Aleksander Vinar, commenced an action alleging, among other claims, legal malpractice, fraud, and conversion against the defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C. (collectively the attorney defendants). The attorney defendants moved for summary judgment seeking dismissal of the complaint against them. The Supreme Court, Queens County, denied their second motion for summary judgment on the grounds that they failed to identify specific new evidence or sufficient cause justifying a successive motion. The attorney defendants appealed this denial.
Legal Issues Presented
- Whether the Supreme Court erred in denying the attorney defendants' second summary judgment motion on the basis that it was successive and lacked newly discovered evidence or sufficient cause.
Arguments of the Parties
Appellants' Arguments
- The attorney defendants contended that their second summary judgment motion was based on new evidence that was unavailable at the time of their initial motion.
Respondent's Arguments
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sutter v. Wakefern Food Corp., 69 A.D.3d 844, 892 N.Y.S.2d 764 | Successive summary judgment motions are generally disfavored absent newly discovered evidence or sufficient cause. | Supported the principle that the defendants' second motion required new evidence or cause to be entertained. |
| Coccia v. Liotti, 101 A.D.3d 664, 956 N.Y.S.2d 63 | Newly discovered evidence may include deposition testimony obtained after a prior motion was denied. | Referenced in evaluating whether the plaintiff's deposition qualified as newly discovered evidence. |
| Powell v. Trans–Auto Sys., 32 A.D.2d 650, 300 N.Y.S.2d 747 | Successive motions should not be based on facts or arguments that could have been submitted originally. | Used to affirm that the defendants could have presented the deposition facts earlier and thus failed the test for a successive motion. |
| Levitz v. Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769 | General principle disfavoring successive summary judgment motions. | Supported the court's strict scrutiny of successive motions. |
| Auffermann v. Distl, 56 A.D.3d 502, 867 N.Y.S.2d 527 | Deposition testimony elicited after a prior order may constitute newly discovered evidence. | Considered in assessing whether the plaintiff's deposition was newly discovered evidence. |
| Alaimo v. Mongelli, 93 A.D.3d 742, 940 N.Y.S.2d 669 | Newly discovered evidence can include deposition testimony obtained post prior motion denial. | Referenced to clarify the standards for newly discovered evidence. |
| Staib v. City of New York, 289 A.D.2d 560, 735 N.Y.S.2d 799 | Similar principle on deposition testimony as newly discovered evidence. | Used to support analysis of deposition evidence timing. |
| Pavlovich v. Zimmet, 50 A.D.3d 1364, 857 N.Y.S.2d 744 | Evidence not submitted previously must establish facts unavailable at the time of initial motion and not obtainable by other means. | Applied to conclude the deposition did not meet the criteria for newly discovered evidence. |
| Capuano v. Platzner Intl. Group, 5 A.D.3d 620, 774 N.Y.S.2d 780 | Successive motions cannot be based on facts or arguments that could have been submitted originally. | Reinforced the court’s denial of the successive motion. |
| Rose v. La Joux, 93 A.D.2d 817, 460 N.Y.S.2d 612 | Requirement that new evidence be unavailable at the time of prior motion. | Supported the court’s conclusion regarding the deposition testimony. |
| Graney Dev. Corp. v. Taksen, 62 A.D.2d 1148, 404 N.Y.S.2d 180 | Standards for newly discovered evidence in successive motions. | Used to evaluate sufficiency of new evidence. |
| Harding v. Buchele, 59 A.D.2d 754, 398 N.Y.S.2d 837 | Successive motions disallowed if based on facts or arguments available earlier. | Supported denial of the second summary judgment motion. |
| Abramoff v. Federal Ins. Co., 48 A.D.2d 676, 368 N.Y.S.2d 44 | Newly discovered evidence must be unavailable at the time of the original motion. | Referenced to clarify evidentiary standards. |
Court's Reasoning and Analysis
The court recognized the general rule that successive motions for summary judgment are disfavored unless supported by newly discovered evidence or other sufficient cause. It examined whether the plaintiff's deposition testimony, obtained after the first motion was denied, qualified as newly discovered evidence. The court found that the facts elicited in the deposition could have been presented previously because they related to matters within the personal knowledge of the attorney defendants and could have been established by other evidentiary means. Consequently, the deposition did not constitute newly discovered evidence sufficient to justify a second summary judgment motion. Because the attorney defendants failed to demonstrate that their successive motion was based on facts or arguments unavailable at the time of the first motion or that other sufficient cause existed, the Supreme Court properly denied the motion.
Holding and Implications
The order of the Supreme Court, Queens County, denying the attorney defendants' second motion for summary judgment dismissing the complaint against them, was AFFIRMED, with costs.
The direct effect of this decision is that the complaint against the attorney defendants will proceed, as the defendants failed to meet the threshold for a second summary judgment motion. The opinion does not establish new precedent but reiterates existing principles limiting successive summary judgment motions to instances supported by newly discovered evidence or sufficient cause.
REINALDO E. RIVERA
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Scott E. Kossove and Daniel M. Maunz of counsel), for appellants. Daniel Berke, New York, N.Y., for respondent.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for legal malpractice, fraud, and conversion, the defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C., appeal from so much of an order of the Supreme Court, Queens County (Lane, J.), dated February 14, 2012, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action alleging, inter alia, legal malpractice, fraud, and conversion. The defendants Honig, Mongioi, Monahan and Sklavos LLP, Edward H. Honig, Robert Anthony Monahan, Mary E. Mongioi, Alexander E. Sklavos, Monahan & Sklavos, P.C., and Alexander E. Sklavos, P.C. (hereinafter collectively the attorney defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court concluded that their motion for summary judgment constituted their second motion for that relief, and denied it on the ground that they failed to identify the specific new evidence or sufficient cause that would justify the making of a successive summary judgment motion. On appeal, the attorney defendants contend, inter alia, that the court erred in denying their motion since their second summary judgment motion was premised on new evidence that was unavailable at the time of their initial motion.
“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” ( Sutter v. Wakefern Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764;see Coccia v. Liotti, 101 A.D.3d 664, 666, 956 N.Y.S.2d 63;Powell v. Trans–Auto Sys., 32 A.D.2d 650, 300 N.Y.S.2d 747;Levitz v. Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769). Although, in this context, newly discovered evidence may consist of “deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment” ( Auffermann v. Distl, 56 A.D.3d 502, 502, 867 N.Y.S.2d 527;see Coccia v. Liotti, 101 A.D.3d at 666, 956 N.Y.S.2d 63;Alaimo v. Mongelli, 93 A.D.3d 742, 743, 940 N.Y.S.2d 669;Staib v. City of New York, 289 A.D.2d 560, 735 N.Y.S.2d 799), such evidence is not “newly discovered” simply because it was not submitted on the previous motion ( Sutter v. Wakefern Food Corp., 69 A.D.3d at 845, 892 N.Y.S.2d 764). Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means ( see Pavlovich v. Zimmet, 50 A.D.3d 1364, 1365, 857 N.Y.S.2d 744;Capuano v. Platzner Intl. Group, 5 A.D.3d 620, 621, 774 N.Y.S.2d 780;Rose v. La Joux, 93 A.D.2d 817, 818, 460 N.Y.S.2d 612;Graney Dev. Corp. v. Taksen, 62 A.D.2d 1148, 1149, 404 N.Y.S.2d 180;Harding v. Buchele, 59 A.D.2d 754, 755, 398 N.Y.S.2d 837;Abramoff v. Federal Ins. Co., 48 A.D.2d 676, 368 N.Y.S.2d 44;Powell v. Trans–Auto Sys., 32 A.D.2d 650, 300 N.Y.S.2d 747). Indeed, “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” ( Capuano v. Platzner Intl. Group, 5 A.D.3d at 621, 774 N.Y.S.2d 780;see Harding v. Buchele, 59 A.D.2d at 755, 398 N.Y.S.2d 837).
Here, contrary to the contention of the attorney defendants, the plaintiff's deposition testimony did not constitute newly discovered evidence. Although the plaintiff's deposition was elicited after the prior summary judgment motion was denied, the purported new facts established by the plaintiff's deposition testimony could have been asserted by the attorney defendants in support of their previous motion. The purported new facts pertained to matters about which the individual attorney defendants had personal knowledge, and could have been established through alternative evidentiary means. Accordingly, since the attorney defendants failed to demonstrate that their second motion for summary judgment was based upon facts or arguments which could not have been submitted on the original motion for summary judgment, and since they failed to demonstrate other sufficient cause, the Supreme Court properly denied their motion ( see Pavlovich v. Zimmet, 50 A.D.3d at 1365, 857 N.Y.S.2d 744;Capuano v. Platzner Intl. Group, 5 A.D.3d at 621, 774 N.Y.S.2d 780;Rose v. La Joux, 93 A.D.2d at 818, 460 N.Y.S.2d 612;Graney Dev. Corp. v. Taksen, 62 A.D.2d at 1149, 404 N.Y.S.2d 180;Harding v. Buchele, 59 A.D.2d at 755, 398 N.Y.S.2d 837;Abramoff v. Federal Ins. Co., 48 A.D.2d 676, 368 N.Y.S.2d 44;Powell v. Trans–Auto Sys., 32 A.D.2d 650, 300 N.Y.S.2d 747).
The parties' remaining contentions have been rendered academic in light of our determination.
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