Proof Submitted in Reply Papers Not Considered

In finding plaintiffs’ claim for indemnification was not supported by proof plaintiffs had actually paid the debts for which they sought reimbursement, the Second Department noted that the debt-payment-proof submitted in reply papers could not be considered:

With limited exceptions not applicable here, a cause of action seeking indemnification is not enforceable until payment is made or a loss is suffered by the party seeking indemnification …. Here, the plaintiffs failed to establish, prima facie, that they actually paid any of the debts … . The plaintiffs’ proof on that issue, which was submitted for the first time in their reply papers, may not be considered for purposes of establishing their prima facie entitlement to judgment as a matter of law … .  Gamparo v Mathai, 2013 NY Slip Op 02711, 2nd Dept, 4-24-13