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SUPREME COURT SHOULD NOT HAVE CONSIDERED DEFENDANT’S ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS; DEFENDANT ORIGINALLY MOVED FOR SUMMARY JUDGMENT AND THEN ARGUED IN REPLY PAPERS IT HAD INTENDED TO MAKE A MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant P & C Merrick’s motion to dismiss the complaint, asserted for the first time in reply papers, should not have been considered by the court. P & C Merrick had initially moved for summary judgment:

The Supreme Court erred in considering P & C Merrick’s contention, raised for the first time in reply, that it intended to move pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it rather than moving for summary judgment dismissing the complaint insofar as asserted against it. There is no indication in the record that the plaintiff had an opportunity to respond to P & C Merrick’s reply and to submit papers in surreply … . Thus, the court should not have addressed the arguments raised by P & C Merrick for the first time in its reply papers … . As these new legal arguments were the basis for directing dismissal of the causes of action alleging specific performance and breach of contract, the plaintiff was prejudiced, and the Supreme Court erred in directing dismissal of those causes of action. Grocery Leasing Corp. v P&C Merrick Realty Co., LLC, 2021 NY Slip Op 04701, Second Dept 8-18-21

 

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