Chemical Bank, Respondent, v. Equity Holding Corp. et al., Appellants and Third-Party Plaintiffs-Appellants. Indemnity Insurance Company of North America, Now Known as CIGNA, Third-Party Defendant-Respondent

Chemical Bank, Respondent, v Equity Holding Corp. et al., Appellants and Third-Party Plaintiffs-Appellants. Indemnity Insurance Company of North America, Now Known as CIGNA, Third-Party Defendant-Respondent. [679 NYS2d 277] [MAJORITY] Judgment, Supreme Court, New York County (Carol Huff, J.), entered July 30, 1997, in favor of plaintiff and against defendants, and bringing up for review an order which granted plaintiff’s motion for summary judgment on its second cause of action for mistaken payment, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about July 7,1997, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. We agree with the IAS Court that no issue of fact exists as to whether plaintiff’s payment to defendants of the certificate of deposit in question, which had been assigned to third-party defendant with notice to plaintiff, was a mistake (see, Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 117, lv denied 77 NY2d 803). Plaintiff’s second summary judgment motion was impliedly permitted by the denial of the first motion as premature, and moreover was based on new evidence gained by discovery that was explicitly anticipated in the first motion (see, Smith v Metropolitan Transp. Auth., 226 AD2d 168, lv denied 89 NY2d 803, cert denied sub nom. Smith v Metro-North Commuter R. R., 520 US 1186). Concur — Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.