Defendant argues that the IAS Court erred in granting plaintiff's 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 A.D.2d 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 A.D.2d 175, 181). Plaintiff's 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.