Opinion
November 16, 1990
Appeal from the Supreme Court, Oswego County, Miller, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Balio, JJ.
Order unanimously reversed on the law without costs, motion granted and cross motion denied. Memorandum: Supreme Court erred in granting the cross motion by Riley Stoker Corporation for leave to renew a prior motion for summary judgment. The prior motion was instituted by defendant Miller Brewing Company and resulted in a decision favorable to Riley Stoker. A prevailing party is not permitted to renew a motion upon which it has already prevailed, particularly where, as here, the cross motion was made subsequent to the filing of a notice of appeal from the original motion (see, Diviak v. Schulefand, 140 A.D.2d 950, 951). Moreover, no valid excuse was offered for failing to submit the additional material at the time of the original application (see, Hughes v Nussbaumer, Clarke Velzy, 140 A.D.2d 989). Accordingly, the deposition of Gaylord, which was submitted on the cross motion to renew but which was not before the court on the initial application for summary judgment, is deleted from the record on appeal for the summary judgment proceeding (see, Hughes v. Nussbaumer, Clarke Velzy, supra).