| EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr. |
| 2009 NY Slip Op 04372 [63 AD3d 665] |
| June 2, 2009 |
| Appellate Division, Second Department |
| EDP Hospital Computer Systems, Inc.,Respondent, v Bronx-Lebanon Hospital Center, Appellant. |
—[*1] Mazzei & Blair, Blue Point, N.Y. (Joseph Scalia of counsel), for respondent.
In an action, inter alia, to recover damages for breach of an oral agreement, the defendantappeals from an order of the Supreme Court, Queens County (Weiss, J.), dated June 30, 2008,which denied its motion for summary judgment dismissing the amended complaint, or, in thealternative, to renew its prior motion for summary judgment dismissing the amended complaint,and to dismiss the amended complaint, in effect, pursuant to CPLR 3126, and on the ground ofspoliation of evidence.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion which was for summary judgment dismissing the sixth cause ofaction, and substituting therefor a provision granting that branch of the motion; as so modified,the order is affirmed, without costs or disbursements.
Although this was the second time that the defendant moved for summary judgment, andalthough there is a "general proscription against successive summary judgment motions" (Auffermann v Distl, 56 AD3d502, 502 [2008]), under the circumstances, the Supreme Court properly addressed the meritsof the defendant's second motion for summary judgment, as the defendant averred that themotion was supported by newly-discovered evidence (see Oppenheim v Village of Great Neck Plaza, Inc., 46 AD3d 527,528 [2007]; Staib v City of New York, 289 AD2d 560, 561 [2001]).
Nevertheless, the Supreme Court properly denied the defendant's second motion forsummary judgment dismissing the amended complaint, or in the alternative, to renew its priormotion for summary judgment dismissing the amended complaint, except the court erred indenying [*2]that branch of the defendant's second motion whichwas for summary judgment dismissing the sixth cause of action. On a prior appeal, uponreviewing the denial of the defendant's first motion for summary judgment dismissing theamended complaint, this Court found that, while the defendant established its prima facieentitlement to summary judgment by tendering evidence that the alleged oral agreement failed tocomply with the provisions of General Obligations Law § 5-701 (a) (1), the plaintiffsubmitted "evidence of partial performance in reliance upon, and unequivocally referable to, theoral agreement," sufficient to raise a triable issue of fact (EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 13 AD3d476, 478 [2004]). Since the defendant's subsequent motion for summary judgment, except asto the sixth cause of action, was essentially based on the same arguments and facts it raised on itsprior motion, this Court's prior determination constitutes the law of the case on those issues (see J-Mar Serv. Ctr., Inc. v Mahoney,Connor & Hussey, 45 AD3d 809 [2007]; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407 [2005]). Theevidence which was obtained after the defendant's first motion for summary judgment (cf.Staib v City of New York, 289 AD2d 560, 561 [2001]) included new evidence furtherestablishing, prima facie, the defendant's entitlement to summary judgment dismissing the sixthcause of action which was for specific performance. In opposition, the plaintiff failed to raise atriable issue of fact.
The Supreme Court also providently exercised its discretion (see De Los Santos v Polanco, 21AD3d 397 [2005]) in denying that branch of the defendant's motion which was to dismissthe amended complaint, in effect, pursuant to CPLR 3126, and on the ground of spoliation ofevidence. The defendant failed to make a clear showing that the plaintiff willfully andcontumaciously failed to comply with discovery demands (see CPLR 3126 [3]; Pulsone v North Shore Towers Apts. Inc.,29 AD3d 883 [2006]). Moreover, the defendant did not demonstrate that the loss ofcertain documents was the result of intentional or negligent spoliation (see Pulsone v North Shore Towers Apts.Inc., 29 AD3d 883 [2006]; Dennis v City of New York, 18 AD3d 599, 600 [2005]).
The defendant's remaining contentions either are without merit or have been renderedacademic in light of our determination. Rivera, J.P., Balkin, Leventhal and Lott, JJ., concur.