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ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERLY REJECTED (SECOND DEPT).

The Second Department noted that arguments first raised in reply papers were properly rejected:

After the plaintiff commenced this action, inter alia, to recover damages for malicious prosecution, the defendants moved to dismiss the complaint … . … [T]he Supreme Court granted the defendants’ unopposed motion to dismiss the complaint … .

More than eight months later, the plaintiff moved for leave to enter a default judgment in her favor. After opposition papers were served, the plaintiff served a reply affirmation, in which she requested that the Supreme Court consider her motion to be one to vacate the order of dismissal, and thereupon, for leave to enter a default judgment in her favor. The court denied, as academic, the plaintiff’s motion for leave to enter a default judgment in light of the dismissal order. The court also denied the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order, and the plaintiff appeals from that portion of the order.

The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for, the motion … . Here, the plaintiff’s reply papers included new arguments in support of the motion, new grounds and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion … . Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court … . Accordingly, we agree with the court’s determination to deny the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order. Lee v Law Offs. of Kim & Bae, P.C., 2018 NY Slip Op 03516, Second Dept 5-16-18

​CIVIL PROCEDURE (ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERTY REJECTED (SECOND DEPT))/REPLY PAPERS (CIVIL PROCEDURE, ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERTY REJECTED (SECOND DEPT))

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MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED... LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT...