Replies

Gelaj v Gelaj, 2018 NY Slip Op 05917 [2d Dept 2018]

The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought (see Matter of Moorman v Meadow Park Rehabilitation & Health Care Ctr., LLC, 57 AD3d 788Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658). There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers (see Gottlieb v Wynne, 159 AD3d 799Central Mtge. Co. v Jahnsen, 150 AD3d 661). Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff's opposition to the cross motion that would have warranted the defendant's submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff's claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim (see Matter of Nozzleman 60, LLC v Village Bd. of Vil. of Cold Spring, 34 AD3d 680Martinez v Dushko, 7 AD3d 584). The defendant also did not assert a claim to sole ownership of the shares in her pleading. Accordingly, the Supreme Court should not have, in effect, granted that branch of the defendant's cross motion which was for summary judgment declaring that she is the sole owner of the shares.

The bold is mine

Compare with

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 [1st Dept 2018]

The motion court properly accepted Veras's second, clarifying affidavit in plaintiff's submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras's initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras's second affidavit was a proper response to defendant's submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras's second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras's own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.

 

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