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Matter First Raised In a Reply Affirmation Is Not Properly Before an Appellate Court

The First Department affirmed the denial of defendants’ motion for summary judgment noting that a matter raised for the first time in defendants’ reply affirmation is not properly before an appellate court.  Anderson v Pena, 2014 NY Slip Op 07948, 1st Dept 11-18-14

 

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THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT).
ALTHOUGH VOLUNTARY PAYMENTS ON A DEFAULT JUDGMENT MAY WAIVE THE PERSONAL JURISDICTION DEFENSE TO THE FAILURE TO MOVE TO VACATE A DEFAULT JUDGMENT WITHIN A YEAR, HERE THE GARNISHMENT OF DEFENDANT’S WAGES FOR MORE THAN A YEAR DID NOT WAIVE THE DEFENSE (FIRST DEPT). ​
EXCLUSION FOR INJURY DURING UNLOADING AN INSURED TRAILER APPLIED, EVEN THOUGH THE INJURY WAS CAUSED BY A DEFECT IN THE TRAILER.
PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). ​
THAT PLAINTIFF IN A TRAFFIC ACCIDENT CASE DID NOT HAVE A PROPER DRIVER’S LICENSE DOES NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).
PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM A LEDGE OUTSIDE HIS HOTEL ROOM; HOTEL STAFF DID NOT ASSUME A DUTY OF CARE FOR PLAINTIFF’S DECEDENT; A DELAY AFTER A FAMILY MEMBER’S REQUEST THAT HOTEL STAFF CALL THE POLICE WAS NOT DEMONSTRATED BY EXPERT OPINION TO HAVE CAUSED THE SUICIDE (FIRST DEPT).
THE 30-DAY NOTICE PROVISION IN THE MORTGAGE DID NOT PRECLUDE ACCELERATING THE DEBT BY THE ALLEGATIONS IN THE FORECLOSURE COMPLAINT, SUPREME COURT SHOULD NOT HAVE NULLIFIED THE ACCELERATION (FIRST DEPT).
TRIAL COURT’S DECLARING A MISTRIAL VIOLATED THE PARTIES’ STIPULATION PURSUANT TO THE SUMMARY JURY TRIAL RULES (FIRST DEPT).

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