Justice Barbara Jaffe
Plaintiffs moved for partial summary judgment on their claim for an account stated in this action for breach of contract. Defendants cross-moved for sanctions. The prior court several times denied both parties’ motions, finding there existed factual issues and credibility determinations that could not be resolved on plaintiffs’ motion. It also denied plaintiffs leave to reargue noting it would be more beneficial to try the case and “stop with frivolous motions,” awarding defendants sanctions. This court noted successive motions for summary judgment were disfavored, finding plaintiffs’ third motion was based on deposition testimony obtained after the first two were filed. Yet, as the people deposed were known by plaintiffs to be witnesses integral to their claims, and absent any reason for plaintiffs’ failure to seek the depositions earlier, the testimony did not constitute new evidence. The court also noted despite the prior court telling plaintiffs they could interpose a third motion, same was not a determination on the application’s merits precluding denial. Depositions reflected there remained triable issues as to the accuracy of plaintiffs’ bills and whether defendants objected to them. Court denied plaintiffs’ motion on the account stated claim.
