Summary
affirming dismissal of defendant's counterclaim that was contingent on another party's claim even if it was construed as a request for a declaratory judgment
Summary of this case from Chan v. LipinerOpinion
November 26, 1990
Appeal from the Supreme Court, Queens County (Hentel, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Anthony Melita, Jr., made a prior motion for summary judgment in 1986, which was denied as premature since there had yet to be any discovery. In his second motion, inter alia, for summary judgment, Mr. Melita merely resubmitted the same evidence as was submitted on the prior motion, and there has yet to be any further discovery. As a general rule, "[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" (La Freniere v. Capital Dist. Transp. Auth., 105 A.D.2d 517, 518; see also, Lewis Constr. v. Gush, 110 A.D.2d 1017). Moreover, "summary judgment is not justified where there are likely to be defenses that depend upon knowledge in the possession of the party moving for judgment, which might well be disclosed by cross-examination or examination before trial" (Terranova v. Emil, 20 N.Y.2d 493, 497; see also, Procter Gamble Distrib. Co. v. Lawrence Am. Field Warehousing Corp., 16 N.Y.2d 344, 362; CPLR 3212 [f]). Thus, summary judgment was properly denied.
We also find that the defendants' counterclaim was properly dismissed. As the counterclaim sought judgment over against the plaintiff in the event the defendants were liable to a different plaintiff in a currently pending New Jersey action, it was contingent, and therefore, did not allege a viable cause of action (see, Felhaber Corp. Horn Constr. Co. v. State of New York, 69 A.D.2d 362, 374). Further, even if the counterclaim were to be construed as a request for a declaratory judgment, it would still not state a valid cause of action (see, Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349; American Ins. Assn. v. Chu, 64 N.Y.2d 379, 386, cert. denied 474 U.S. 803; New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527; Tri-State SolAire Corp. v. County of Nassau, 156 A.D.2d 555). Thompson, J.P., Brown, Kunzeman and Eiber, JJ., concur.