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ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT).

The First Department noted that essential evidence in reply papers was properly considered by the court because a surreply was allowed:

 … [T]o support amending a personal injury complaint to add a cause of action for wrongful death, plaintiffs were required to submit “competent medical proof of the causal connection between the alleged malpractice and the death of the original plaintiff” … . The affirmation of plaintiffs’ expert, which stated that to a reasonable degree of medical certainty the decedent’s injury led to his death, was sufficient, for the purposes of CPLR 3025(b), to establish a causal connection between the decedent’s death and the originally alleged negligence by defendants … . Plaintiff’s submission of the expert’s affirmation on reply is not fatal to the motion, because defendant was permitted to submit a surreply. Frangiadakis v 51 W. 81st St. Corp., 2018 NY Slip Op 03331, First Dept 5-8-18

​CIVIL PROCEDURE (REPLY PAPERS, ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT))/REPLY PAPERS (CIVIL PROCEDURE, ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT))

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​ THE ALLEGATIONS DID NOT RAISE A QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT INSURANCE AGENT SUCH THAT PLAINTIFF COULD RELY ON THE AGENT TO CORRECT ANY MISREPRESENTATIONS IN THE INSURANCE APPLICATION (FIRST DEPT).
A COURT HAS THE DISCRETION TO GRANT A MOTION TO RENEW THAT IS NOT BASED ON NEWLY DISCOVERED EVIDENCE (FIRST DEPT).
PLAINTIFF, WHO HAD PASSED OUT AT A CONCERT, REFUSED ASSISTANCE IN WALKING TO THE BACK OF THE THEATER SO THE EMERGENCY MEDICAL TECHNICIAN COULD CHECK HIS BLOOD PRESSURE AND PULSE; WHEN HE ATTEMPTED TO WALK TO THE BACK OF THE THEATER HE PASSED OUT AGAIN AND FELL, HIS FACE HITTING THE FLOOR; THE DEFENDANTS DID NOT HAVE A DUTY TO ASSIST PLAINTIFF AFTER HE REFUSED THEIR HELP AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
Dismissal of Complaint Was Too Severe a Sanction for Spoliation
PLAINTIFF WAS INJURED WHEN THE CEILING COLLAPSED WHILE HE WAS TAKING OUT WALLS, THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
UNDER THE TERMS OF THE LIMITED LIABILITY AGREEMENT, THE ESTATE OF A DECEASED MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WAS NOT A MEMBER OF THE LLC AND THEREFORE COULD NOT PARTICIPATE IN THE RUNNING OF THE LLC OR INSPECT ITS BOOKS AND WAS NOT OWED A FIDUCIARY DUTY (FIRST DEPT).
WHERE THE CRITERIA ARE MET SENTENCING AS A PREDICATE FELON IS MANDATORY, DEFENDANT SHOULD HAVE BEEN SO SENTENCED BUT WAS NOT, PEOPLE’S MOTION TO SET ASIDE THE ILLEGAL SENTENCE PROPERLY BROUGHT AND GRANTED.
UNLOADING STEEL PLATES USED TO COVER EXCAVATED AREAS AT A CONSTRUCTION SITE WAS A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (FIRST DEPT).

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