SOTO v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated March 30, 2005, which denied its motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

While denominated a motion for leave to renew and reargue, the defendant's motion was actually its second motion for summary judgment.   The defendant violated the rule against filing successive motions for summary judgment as the evidence, which derived from the deposition testimony of its own witness, and grounds submitted in the second motion, could have been submitted on the original motion (see Capuano v. Platzner Intl. Group, 5 A.D.3d 620, 621, 774 N.Y.S.2d 780;  Klein v. Auerbach, 1 A.D.3d 317, 318, 766 N.Y.S.2d 580;  Echeverri v. Flushing Hosp. & Med. Ctr., 123 A.D.2d 818, 819, 507 N.Y.S.2d 433;  Hirschfeld v. Carpinello, 12 Misc.3d 749, 752, 815 N.Y.S.2d 420;  cf. Staib v. City of New York, 289 A.D.2d 560, 561, 735 N.Y.S.2d 799;  Fielding v. Environmental Resources Mgmt. Group, 253 A.D.2d 713, 678 N.Y.S.2d 253;  McIvor v. Di Benedetto, 121 A.D.2d 519, 522, 503 N.Y.S.2d 836).   Accordingly, the defendant's motion was properly denied.