Opinion
2002-03790
Argued September 19, 2003.
November 3, 2003.
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.
Jeffrey L. Rosenberg Associates, LLC, New York, N.Y. for appellant.
Bracken, Margolin Gouvis, LLP, Islandia, N.Y. (John P. Bracken and Olympia Gouvis of counsel), for respondents Stephen B. Auerbach and Central Radio Communications Corp.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's 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 A.D.2d 685, 686; see Rose v. LaJoux 93 A.D.2d 817, 818). 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 A.D.2d 447, 449).
SANTUCCI, J.P., KRAUSMAN, TOWNES and COZIER, JJ., concur.