Under the Circumstances, Court Properly Considered New Information Presented in a Surreply

The Second Department explained when the court may consider evidence submitted for the first time in a surreply:

While it is true that unauthorized surreplies containing new arguments generally should not be considered by the court … , the procedural history in this case is analogous to circumstances in which arguments are raised for the first time in reply. Arguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply… . Here, while the motion was fully briefed by its return date, the court granted the defendants’ application for an adjournment to February 8, 2013, in order to respond to the plaintiff’s reply. The defendants submitted the surreply containing the Nolie affidavit dated January 28, 2013, and the plaintiff responded to it on February 7, 2013. In addition, oral argument was held on February 8, 2013. Consequently, the plaintiff had adequate opportunity to address the new arguments raised in the defendants’ surreply, and the Supreme Court properly considered it. Gluck v New York City Tr Auth, 2014 NY Slip Op 03977, 2nd Dept 6-4-14