Opinion
15101 Index No. 156221/16 Case No. 2021-02857
01-18-2022
Mario KUCHER, Plaintiff-Appellant, v. Elliot SOHAYEGH et al., Defendants-Respondents.
Sutton Sachs Meyer PLLC, New York (Zachary G. Meyer of counsel), for appellant. The Price Law Firm, LLC, New York (Jennifer Milosavljevic of counsel), for respondents.
Sutton Sachs Meyer PLLC, New York (Zachary G. Meyer of counsel), for appellant.
The Price Law Firm, LLC, New York (Jennifer Milosavljevic of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Kern, Mazzarelli, Gesmer, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about May 21, 2021, which denied plaintiff's motion for summary judgment on his unjust enrichment and promissory estoppel claims and dismissing defendants’ counterclaim and second and third affirmative defenses, unanimously affirmed, without costs.
Plaintiff failed to show that this motion for summary judgment, his second in this case, should not be disfavored as a successive motion because it was based on new evidence (see Amill v. Lawrence Ruben Co., Inc., 117 A.D.3d 433, 985 N.Y.S.2d 52 [1st Dept. 2014] ). Contrary to his contention, the testimony he cites, not yet given at the time of his first motion, is not a determinative concession of liability. Also unavailing is plaintiff's argument that this motion was not a "successive" motion because in a prior appeal this Court dismissed his breach of contract claim (see Kucher v. Sohayegh, 182 A.D.3d 523, 120 N.Y.S.3d 779 [1st Dept. 2020] ). Plaintiff failed to show that our dismissal pursuant to Real Property Law § 442–d changed or clarified existing law. Nor did plaintiff show that it was procedurally proper for him to move a second time for the summary dismissal of defendants’ counterclaim and affirmative defenses.
We have considered plaintiff's remaining arguments and find them unavailing.