Davidson Metals Corp., Respondent, v. Marlo Development Company et al., Appellants

Davidson Metals Corp., Respondent, v Marlo Development Company et al., Appellants. [691 NYS2d 898] [MAJORITY] —In an action, inter alia, to recover damages for breach of contract, the defendants appeal-from stated portions of an order, of the Supreme Court, Nassau County (Joseph, J.), dated May 28, 1998, which, inter alia, denied their cross motion, among other things, for summary judgment dismissing the complaint, or, for leave to serve an amended answer. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly denied the defendants’ cross motion, inter alia, for summary judgment dismissing the complaint. This cross motion was the fourth motion for dismissal of the breach of contract cause of action, and the second summary judgment motion, in this case, and it violated the general proscription against successive summary judgment motions absent “a showing of newly discovered evidence or other sufficient cause” (Marine Midland Bank v Fosher, 85 AD2d 905, 906; see, Taylor v Brooklyn Hosp., 187 AD2d 714). Moreover, there are material issues of fact which preclude the granting of summary judgment. The Supreme Court properly exercised its discretion in denying that branch of the defendants’ motion which was for leave to amend their answer on the eve of trial in this nearly four year-old case to assert “questionable” affirmative defenses which would prejudice the plaintiff (see, Glorioso v DeBlasio, 227 AD2d 588). The defendants’ request for sanctions and treble damages is without merit. Mangano, P. J., Sullivan, Goldstein and Mc-Ginity, JJ., concur.