When Summary Doesn’t Mean Summary: Getting a Second Bite at Summary Judgment

March 21, 2019

There is a general policy in New York against allowing multiple or successive motions for summary judgment. And it stands to reason. After all, the word “summary,” from the Latin summa (as in Thomas Aquinas), refers to the essence, epitome, or totality of a thing; to a comprehensive statement that captures the whole, often in a conclusory manner. Summary judgment is “dispositive” by its nature. That is, it tends to be the final word on this or that issue where there is nothing further for the court to consider.

The judges of the Commercial Division generally hold to the policy prohibiting the consideration of successive summary judgment motions. “[A] plaintiff may not make multiple motions for summary judgment,” held former Manhattan Commercial Division Justice Anil C. Singh in Burbridge v Soho Plaza Corp., after the plaintiff sought to make a summary judgment motion nearly two years after the filing of the note of issue. In Northeast Capital & Advisory, Inc. v Delaware Bancshares, Inc., Albany County Commercial Division Justice Richard M. Platkin put the parties on notice in the decretal paragraphs of his decision denying the parties’ cross-motions for partial summary judgment that “the Court does not intend to entertain successive summary judgment motions in this action.” And in Red Zone LLC v Cadwalader, Wickersham & Taft LLP, Manhattan Commercial Division Justice O. Peter Sherwood held that, absent unusual circumstances, “successive motions for summary judgment are not allowed” — the “unusual circumstance” in that case being the fact that the Court of Appeals eventually modified the prior grant of summary judgment to reinstate a statute of limitations defense and directed “further fact development.”

Former Suffolk County Commercial Division Justice Thomas F. Whelan described the rationale behind the policy several years ago in Polo Grounds at Melville, LLC v William J. Schneider Revocable Living Trust: “The rule is intended to deter the interposition of successive motions for summary judgment in the guise of motions to renew where the new material could have been submitted with the original motion.” Former Manhattan Commercial Division Justice Eileen Bransten made a similar point in Colonial Sur. Co. v Millennium Century Constr., Inc. when quoting the oft-cited precedential language: “Parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment.”

But summary doesn’t always mean summary. That is, there exists the possibility that a prior summary judgment decision was insufficiently comprehensive either because an intervening appellate decision changed or clarified the law on this or that issue or because of some newly-discovered evidence. Just this month, the First Department in City Natl. Bank v Morelli Ratner, P.C. affirmed Manhattan Commercial Division Justice Andrea Masley’s consideration and grant of the plaintiff-bank’s second motion for summary judgment “because the motion was supported by at least some new evidence and the policy against multiple summary judgment motions has no application where, as here, the first motion . . . is denied on the ground of the existence of a factual issue which, through later uncovering of the facts, is resolved or eliminated.”

Morelli involved a promissory note on a $10 million loan secured by a written guaranty. After the defendant-borrower defaulted on the note, the parties unsuccessfully attempted to negotiate a work-out for the borrower. The bank eventually commenced an expedited “motion-action” under CPLR 3213, and the borrower defended on the basis of an alleged oral modification of the loan during the work-out period. The court denied the bank’s motion finding issues of fact, the First Department affirmed, and the matter was converted to a plenary action. After the parties engaged in discovery on the oral-modification issue, the bank again moved for summary judgment, this time under CPLR 3212.

In the underlying decision, Justice Masely stated that she would “entertain” the bank’s second motion based on its “showing of newly discovered evidence” on the issue of whether the parties entered into an oral agreement to modify the loan. That evidence consisted primarily of “subsequent written correspondence,” which showed that the parties hadn’t reached a meeting of the minds on any kind of modification but instead had merely “engaged in negotiations.” The court therefore granted the motion, and the bank was successful the second time around.

A pertinent point of procedural interest here: As noted above, the prior summary judgment motion in Morelli was one “in lieu of complaint” under CPLR 3213. Which means that the parties hadn’t engaged in any discovery prior to the court’s denial of the bank’s prior motion. It was only after the case was converted to a plenary action by virtue of the denial of the bank’s prior motion that the dispositive documentary evidence came to light. In other words, the procedural posture of the Morelli was, in a sense, built for the court’s application of the exception to the general policy against successive motions for summary judgment.