Brown Harris Stevens Westhampton LLC, Appellant, v. Kelly Gerber, Respondent

Brown Harris Stevens Westhampton LLC, Appellant, v Kelly Gerber, Respondent. [968 NYS2d 32] [MAJORITY] — Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 4, 2012, which denied plaintiffs motion for, among other things, summary judgment on its claim for a real estate commission, unanimously affirmed, with costs. The court properly denied plaintiffs 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. Concur — Andrias, J.P., Friedman, Moskowitz, DeGrasse and Feinman, JJ.