DEMBELE v. DHG LLC (2022)

Order, Supreme Court, New York County (W. Franc Perry, J.), entered on or about September 14, 2020, which, to the extent appealed from, denied defendants Action Carting Environmental Services, Inc., BCRE Grand Street Owner LLC, BCRE Grand Hotel LLC, BCRE Grand Restaurant LLC, and BCRE Grand Café, LLC's motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Supreme Court correctly held that the successive summary judgment motions were improper (see Pough v. Aegis Prop. Servs. Corp., 186 A.D.2d 52, 53, 588 N.Y.S.2d 767 [1st Dept. 1992] [“[A]s a matter of policy, multiple summary judgment motions are discouraged in the absence of newly discovered evidence or ‘other sufficient cause’ ”]).  Plaintiff's subsequent testimony as to the cause of his fall was consistent with his initial deposition upon which the original motions were decided, and the subsequent testimony did not change defendants’ failure to establish a lack of constructive notice (see Brown Harris Stevens Westhampton LLC v. Gerber, 107 A.D.3d 526, 527, 968 N.Y.S.2d 32 [1st Dept. 2013]).  Plaintiff's testimony that he slipped or slid on cardboard in an area that was wet, oily, and dirty was consistent in both depositions and sufficiently identified the cause of the accident (see Samuelsen v. Wollman Rink Operations LLC, 201 A.D.3d 490, 491, 161 N.Y.S.3d 64 [1st Dept. 2022]).