By notice of motion, plaintiffs move pursuant to CPLR 3212 for an order granting them partial summary judgment on their second cause of action for an account stated and also granting them costs, disbursements, attorney fees, and pre- and post-judgment statutory interest. Defendants oppose and, by notice of cross motion, move pursuant to 22 NYCRR 130-1.1 for an order awarding them sanctions against plaintiffs.

On December 29, 2008, plaintiffs filed and served a complaint containing three causes of action, breach of contract, account stated, and quantum meruit. (NYSCEF 267-1).

On or about February 23, 2009, defendants moved to dismiss the complaint against defendant Weaver Popcorn Company, Inc. (Weaver) and plaintiffs cross-moved for summary judgment on their cause of action for an account stated. (NYSCEF 267). By decision and order dated April 28, 2010, the justice previously assigned to this matter denied both motions, finding [*2]as to plaintiffs' motion that there existed factual issues and credibility determinations that could not then be resolved. (NYSCEF 267-3).

On August 8, 2011, as pertinent here, defendants moved for an order granting them partial summary judgment as to plaintiffs' claim for late fees, and plaintiffs filed their second motion for summary judgment on their account stated cause of action. (NYSCEF 267-5). By decision and order dated January 13, 2012, the prior justice denied both motions, holding that plaintiffs' submissions in support of their motion created factual issues as to the accuracy of their bills, that they failed to establish when the bills were made and sent to defendants, the number of invoices allegedly sent, and whether they followed a regular office mailing procedure, and that there were disputed issues related to defendants' objections to the invoices. (NYSCEF 267-6).

On February 16, 2012, plaintiffs filed a motion seeking leave to reargue the second motion and also sought sanctions against defendants, asserting that an affidavit submitted in opposition to the motion by Thomas M. Shoaff, a member of Weaver's Board of Directors and a partner at defendant Baker & Daniels LLP (Baker), who was the "oversight attorney" for the case at issue, was false. Defendants cross-moved for sanctions, claiming that plaintiffs' motion for sanctions was frivolous. (NYSCEF 267-7).

On July 11, 2012, the parties appeared for oral arguments on the motions, and the previous justice told plaintiffs' attorney that "it would be far more beneficial to your client to get this case to the point where you can file a note of issue and just try it . . . If you believe, after discovery is complete, you want to make a third summary judgment motion, God bless you, go ahead. But otherwise, try the case and get it done. Stop wasting time with these kinds of frivolous motions." (NYSCEF 273). The justice denied plaintiffs' motions for leave to reargue and for sanctions, and granted defendants' cross-motion for sanctions in the amount of $2,500. (Id.).

After oral argument on the prior motions and while a decision on the motions was pending, the justice also issued commissions for the depositions of Shoaff and Kevin Richard Erdman, another Baker partner, who was responsible for legal services in the case and the specific matter for which plaintiffs were hired, which were taken on September 18, 2012, and September 28, 2012, respectively. (NYSCEF 274, 275).

On October 18, 2012, defendants filed a note of issue seeking a non-jury trial, and on October 26, 2012, plaintiffs filed a cross-note of issue with a jury demand. (NYSCEF 267). The instant motion was filed on December 14, 2012.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Summary judgment must be denied if this burden is not met, regardless of the sufficiency of the opposing papers. (Alvarez, 68 NY2d at 324).

The burden of proof shifts to the opposing party once the proponent has made its prima facie showing. (Zuckerman v. New York, 49 NY2d 557, 562 [1980]; Alvarez, 68 NY2d at 324). "The opposing party must show facts sufficient to require a trial of any issue of fact." (Zuckerman, 49 NY2d at 562). The facts must be presented as evidentiary proof in admissible [*3]form as "mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." (Id.).

B. Successive summary judgment motions

Successive motions for summary judgment are generally disfavored. They are not prohibited, however, when new evidence is produced that was not available at the time of the prior motion. (Sansol Indus. v 345 E. 56th St. Owners, Inc., 276 AD2d 370, 371 [1st Dept 2000]).

While deposition testimony that was not elicited until after the original summary judgment motion was decided may constitute new evidence, it is not newly discovered simply because it was not submitted on the prior motion but instead must be used to establish facts that were not available to the movant earlier and which could not have been established through alternative evidentiary means. (Vinar v Litman, __ AD3d __, 972 NYS2d 704 [2d Dept 2013]).

Here, plaintiffs' third summary judgment motion is based upon deposition testimony obtained after the first two motions were filed. However, as the two people deposed, Shoaff and Erdman, were known by plaintiffs to be witnesses integral to their claims, and absent any reason given for plaintiffs' failure to seek the depositions earlier, the deposition testimony does not constitute new evidence as plaintiffs could and should have obtained it sooner. (See Taub v Art Students League of New York, 63 AD3d 630 [1st Dept 2009] [new evidence rejected for failure to show due diligence in attempting to obtain it before submission of first motion]; Pavlovich v Zimmet, 50 AD3d 1364 [3d Dept 2008] [evidence that was or could have been submitted with initial motion does not constitute newly-discovered evidence]; Hirschfeld v Carpinello, 12 Misc 3d 749 [Sup Ct, Orange County 2006] ["[T]he affidavits and testimony submitted by [movants] could very well have been obtained previously. . . Merely because discovery was incomplete at the time [movants] moved for summary judgment twice previously does not entitle them to move after the completion of discovery"]).

Moreover, the new deposition testimony does not differ substantially from the deponents' earlier testimony or affidavits, which had been submitted on the prior motions, and does not address the deficiencies identified in the prior decisions denying plaintiffs' first and second summary judgment motions. (See Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526 [1st Dept 2013] [although defendant's deposition testimony was not available at time of first motion, it did not yield new evidence as to warrant consideration of second motion]; Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d 946 [3d Dept 2007] [new deposition transcripts did not yield sufficiently new materials or previously unavailable information]).

That the justice told plaintiffs at oral argument that, in effect, they could interpose a third summary judgment motion if they wished to do so, was not a determination on the merits of the application and does not preclude me from denying it.

Even if there was a sufficient basis for permitting plaintiffs to argue their third summary judgment motion, they have not demonstrated that it raises new issues or suffices to establish their claim for an account stated. Rather, the testimony reflects that there remain triable issues as to the accuracy of plaintiffs' bills and whether defendants objected to them.

While plaintiffs were previously sanctioned for making their second summary judgment motion, given that the deposition testimony on which they rely was taken only after that motion [*4]was filed, the instant motion is not frivolous as they had a legal ground upon which to move again. I thus decline to award sanctions.

Accordingly, it is hereby

ORDERED, that plaintiffs' motion for partial summary judgment on their account stated claim is denied; and it is further

ORDERED, that defendants' motion for an order awarding sanctions against plaintiffs is denied.

ENTER:

Barbara Jaffe, JSC

DATED:November 25, 2013

New York, New York