Opinion
15407/03.
Decided November 15, 2006.
Plaintiff: Sacks Sacks.
Defendant: Callan Koster Brady Brennan, O'Connor O'Connor Hintz.
Upon the foregoing papers, defendant New Life Homes, L.P. moves for an order, pursuant to CPLR 3212, granting summary judgment on its cross-claim against defendant Skyline Development Corp. for contractual indemnification.
Factual Background
The instant action arises out of an accident which occurred on November 20, 2000, when the plaintiff Wilfred Larocque (plaintiff) allegedly sustained injuries while working on the construction of a building located at 373 DeWitt Avenue in Brooklyn, New York. Defendant New Life Homes, L.P. (New Life) was the owner of the premises and defendant Skyline Development Corp. (Skyline) was the general contractor. Plaintiff alleges that, while he was walking out a doorway on the first floor of the subject building, he was hit by a 5-foot long piece of wood which had fallen from the fifth floor. Plaintiff subsequently commenced the within action for personal injuries against defendants alleging, inter alia, causes of action in common-law negligence and violations of §§ 200, 240(1) and 241(6) of the Labor Law. After the joinder of issue, the parties engaged in discovery. On or about August 8, 2005, New Life brought a motion seeking, among other things, summary judgment on its cross-claim against Skyline for contractual indemnity. By order dated August 19, 2005, this court denied that aspect of New Life's motion.
Discussion
New Life has now brought another summary judgment application seeking judgment in its favor against Skyline on its cross-claim for contractual indemnity. In opposition, Skyline seeks to block consideration of the merits of New Life's summary judgment motion on the ground that New Life has failed to come forward with any new evidence that was not readily available at the time the prior motion was made ( see National Enterprises Corp. v. Dechert Price Rhoads, 246 AD2d 481; Phoenix Four, Inc. v. Albertini, 245 AD2d 166). This court agrees.
It is well settled that "[m]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause" ( Flomenhaft v. Fine Arts Museum of Long Is., 255 AD2d 290; see Forte v. Weiner, 214 AD2d 397; Giganti v. Town of Hempstead, 186 AD2d 627, 628).
In this case, New Life instituted a prior motion for summary judgment seeking, among other relief, judgment in its favor on its cross-claim for contractual indemnification against Skyline. By order dated August 19, 2005, that branch of New Life's motion was denied by this court. Although New Life's prior summary judgment application was based upon the doctrine of collateral estoppel, New Life's present motion is based on grounds and factual assertions which could have, and should have, been raised in the first motion ( see e.g., Curry v. Nocket, 104 AD2d 435, lv denied 64 NY2d 606; Abramoff v. Federal Ins. Co., 48 AD2d 676).
Indeed, the documents (i.e., contractual provisions), as well as the deposition testimony submitted in support of New Life's present motion, could have been submitted at the time of its first motion for summary judgment. "'Parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent motion for summary judgment'" ( Phoenix Four, Inc. v. Albertini, 245 AD2d 166, 167 quoting Levitz v. Robbins Music Corporation, 17 AD2d 801). Since New Life has failed to raise any issue that was not, or could not have been, raised on that prior application, the court's denial of New Life's prior application regarding its cross-claim for contractual indemnity bars consideration of New Life's present motion for the same relief. Accordingly, New Life's motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.