BROWN HARRIS STEVENS WESTHAMPTON LLC v. GERBER

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BROWN HARRIS STEVENS WESTHAMPTON LLC, Plaintiff–Appellant, v. Kelly GERBER, Defendant–Respondent.

Decided: June 18, 2013

ANDRIAS, J.P., FRIEDMAN, MOSKOWITZ, DeGRASSE, FEINMAN, JJ. Penn Proefriedt Schwarzfeld & Schwartz, New York (Neal Schwarzfeld of counsel), for appellant. Crowell & Moring LLP, New York (Alan B. Howard of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 4, 2012, which denied plaintiff's motion for, among other things, summary judgment on its claim for a real estate commission, unanimously affirmed, with costs.

The court properly denied plaintiff's second successive motion for summary judgment, since plaintiff failed to offer any newly discovered evidence or demonstrate other sufficient cause for making the second motion (see 11 Essex St. Corp. v. Tower Ins. Co. of N.Y ., 81 AD3d 516, 517 [1st Dept 2011] ). Defendant's deposition testimony, although not available at the time of the first motion, did not yield such new evidence as to warrant consideration of the second motion (see Pavlovich v. Zimmet, 50 AD3d 1364, 1365 [3d Dept 2008] ). Furthermore, the document production, consisting of a series of emails between the parties and the proposed and final listing agreements, does not constitute new evidence, since they were available to the parties at the time of the first motion (see id.), and were extensively relied upon by the parties during oral argument of that motion.