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NEW GROUNDS OR EVIDENCE IN SUPPORT OF PLAINTIFFS’ MOTION TO DISMISS RAISED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that new arguments or evidence presented in the reply papers should not have been considered:

… [P]laintiffs failed to establish that the defendant’s affirmative defense alleging the expiration of the statute of limitations was without merit as a matter of law. The plaintiffs’ moving papers did not support their conclusory allegations that the defendant’s treatment of the injured plaintiff beginning on May 11, 2021, and continuing through July 15, 2022, made their action timely based on the continuous treatment doctrine … . The plaintiffs’ attempt to remedy this deficiency by submitting portions of a purported medical chart through their counsel’s reply affirmation was improper. 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 grounds or evidence in support of the motion … . Malone v Spaliviero, 2026 NY Slip Op 05948, Second Dept 10-14-26

Practice Point: Here new evidence submitted in reply papers should not have been considered by the court.

 

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