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Serino v. Miller Brewing Co.

167 A.D.2d 919 Court N.Y. App. Div. Decision date 1990-11-16 Docket Appeal No. 3 English

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p. 919
James Serino, Plaintiff, v Miller Brewing Company, Appellant and Third-Party Plaintiff-Appellant, et al., Defendant. Riley Stoker Corporation, Third-Party Defendant-Respondent, et al., Third-Party Defendant.
(Appeal No. 3.)

Order unanimously reversed on the law without costs, motion granted and cross motion denied. Memorandum: Supreme Court erred in granting the cross motion by Riley Stoker Corporation for leave to renew a prior motion for summary judgment. The prior motion was instituted by defendant Miller Brewing Company and resulted in a decision favorable to Riley Stoker. A prevailing party is not permitted to renew a motion upon which it has already prevailed, particularly where, as here, the cross motion was made subsequent to the filing of a notice of appeal from the original motion (see, Diviak v Schulefand, 140 AD2d 950 , 951). Moreover, no valid excuse was offered for failing to submit the additional material at the time of the original application (see, Hughes v

p. 920
Nussbaumer, Clarke & Velzy, 140 AD2d 989 ). Accordingly, the deposition of Gaylord, which was submitted on the cross motion to renew but which was not before the court on the initial application for summary judgment, is deleted from the record on appeal for the summary judgment proceeding (see, Hughes v Nussbaumer, Clarke & Velzy, supra). (Appeal from order of Supreme Court, Oswego County, Miller, J.—settle record on appeal.) Present—Callahan, J. P., Doerr, Boomer, Green and Balio, JJ.

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