Jones v Geoghan, 2009 NY Slip Op 02752 (App. Div., 2nd, 2009)
Although the appellants expressly raised a defense based on the
emergency doctrine for the first time in their reply papers, we may
consider it on appeal. In the first instance, the defense was raised in
direct response to the allegation made in the plaintiff's opposition
papers that the decedent was struck by a van in motion, rather than
thrown into the path of a stopped van (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630; see also Kelsol Diamond Co. v Stuart Lerner, 286
AD2d 586, 587). Moreover, "[a]lthough the existence of an emergency and
the reasonableness of a party's response to it will ordinarily present
questions of fact" (Bello v Transit Auth. of N.Y. City 12 AD3d 58, 60; see Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444), those issues, under the circumstances here, are determinable as a matter of law (see Vitale v Levine, 44 AD3d at 936; Gajjar v Shah, 31 AD3d at 378; Marsch v Catanzaro, 40 AD3d 941, 942; Garcia v Prado, 15 AD3d 347; Huggins v Figueroa, 305
AD2d 460, 462). The appellants' reply papers presented no new facts,
but only an issue of law which appears on the face of the record. Thus,
the defense based on the emergency doctrine may be considered on this
appeal, as that issue was briefed by the parties on appeal (see Hoffman v City of New York, 301 AD2d 573, 574) and could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see generally Dugan v Crown Broadway, LLC, 33 AD3d 656; Hoffman v City of New York, 301 AD2d at 574; Block v Magee, 146
AD2d 730, 732-733). Further, the facts surrounding the events leading
up to the accident were known to the plaintiff and, thus, there was no
unfair surprise when the defense was raised by the appellants in their
reply to the plaintiff's opposition (cf. Vitale v Levine, 44 AD3d at 936; Bello v Transit Auth. of N.Y. City, 12 AD3d at 61).
As someone else noted, "Makes sense, since the raising of the defense is in response to an aff
in opp, and not something that had any place in the actual motion. I
can dig it."
One thought on “Defense raised for first time in Reply may be considered on appeal”
Okay if it is raised in fair response to something in the opposition. As a general matter the Second Department will not allow a party to introduce new facts or even new arguments in Reply. I use the case law all the time …
It’s just not fair since the opposing party has no chance to address it.
… I use the case law all the time but of course anything goes in Civil Court and the Appellate Term 2nd Dep’t.