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CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED.

The Second Department determined a shortened statute of limitations agreed to in a stock purchase contract was properly enforced. Plaintiff discovered that defendant had not paid the full purchase price for the stock, and brought a breach of contract action after the contractual statute of limitations had expired:

“Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” … . To be enforceable, such provision must be clear and unambiguous … . “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” … . ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . …

Contrary to the plaintiff’s contention, the plain language of the provision limiting the time period to bring an “action based on any warranty, covenant or representation contained in this Agreement” is clear and unambiguous, and applies to the defendant’s covenant to pay … . This interpretation is consistent with the plain meaning of the contract and basic principles of contract construction that an interpretation which renders language in the contract superfluous cannot be supported … . Batales v Friedman, 2016 NY Slip Op 07615, 2nd Dept 11-16-16

 

CONTRACT LAW (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/CIVIL PROCEDURE (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/STATUTE OF LIMITATIONS (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)

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FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND.

The Second Department determined failure to file proof of service of a petition and notice of petition should not have resulted in the denial of the petition. The motion court raised the ground for denial itself. Rather than denying the petition, the motion court should have alerted the parties to the defect and allowed it to be cured:

“The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … . Here, there is no dispute that the respondents were served with the notice of petition and petition, as they moved to dismiss on the ground that the petition failed to state a cause of action. At no time did they argue that the proceeding should be dismissed for failure to file proof of service. As such, the parties did not have an opportunity to address the purported failure to file proof of service, the ground upon which the Supreme Court relied in denying the petition and dismissing the proceeding, even though such defect is readily curable (see CPLR 2001, 2004). “The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … . Therefore, the Supreme Court should have alerted the parties to the purported defect and afforded the appellant an opportunity to correct it, rather than denying the petition and dismissing the proceeding… . Matter of Meighan v Ponte, 2016 NY Slip Op 07653, 2nd Dept 11-16-16

CIVIL PROCEDURE (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)/SERVICE, PROOF OF (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)

COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS.

The Second Department determined Supreme Court properly determined a declaratory judgment action in defendant’s favor as a matter of law in the context of defendant’s motion to dismiss:

A motion to dismiss a cause of action for declaratory relief generally “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” … . However, “where the court, deeming the material allegations of the complaint to be true, is nonetheless able to determine, as a matter of law, that the defendant is entitled to a declaration in his or her favor, the court may enter a judgment making the appropriate declaration” … . Here, deeming the material allegations of the complaint to be true and considering the documents that were attached to and made part of the complaint (see CPLR 3014), including the stipulation of settlement, the Supreme Court properly determined, as a matter of law, that defendant was entitled to a declaration in her favor … . Pilgrim v Pantorilla, 2016 NY Slip Op 07634, 2nd Dept 11-16-16

CIVIL PROCEDURE (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)/DECLARATORY JUDGMENT (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)

COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED.

The Second Department determined: (1) a motion for summary judgment should not have been denied based upon a ground not raised by any party in opposition; (2) a motion for summary judgment should not have been denied based on the failure to attach all of the parties’ pleadings to the motion papers; and (3) a motion should not have been denied because it was directed at an amended complaint which was never served, rather than the original complaint:

The Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them due to their failure to provide all of the pleadings, as required by CPLR 3212(b). In this regard, the … defendants submitted the complaint and their answer, but did not submit the answers of the other defendants. The … plaintiffs, in opposition, did not contend that this branch of the … defendants’ motion should be denied due to the … defendants’ failure to fully comply with CPLR 3212(b). Consequently, the court should not have raised the issue on the … plaintiffs’ behalf … . Moreover, under the circumstances, the … defendants’ failure to submit the answers of the other defendants was a mere irregularity and, since no substantial right of any party was prejudiced, the court should have disregarded that defect and reached the merits of that branch of the … defendants’ motion … .

… [T]he court should have disregarded the error … in moving against the amended complaint instead of the original complaint, since it did not affect the merits or prejudice a substantial right of the … plaintiffs … . Mew Equity, LLC v Sutton Land Servs., LLC, 2016 NY Slip Op 07630, 2nd Dept 11-16-16

 

CIVIL PROCEDURE (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)/SUMMARY JUDGMENT, MOTIONS FOR (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)

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ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED.

The Third Department determined all “rezoned” property-owners, deemed “necessary parties” by Supreme Court in this action to annul a local law rezoning property for industrial use. were, in fact, not “necessary parties.” The petition, which had been dismissed for failure to timely serve the newly-added “necessary parties,” was reinstated. The local law, which would allow a recycling center in a previously residential-agricultural zone, was challenged based upon an alleged failure to comply with the State Environment Quality Review Act:

The newly-added respondents were not necessary parties merely because the ordinance at issue affected their property rights. “‘[T]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion'” (Bayview Loan Servicing, LLC v Sulyman, 130 AD3d 1197, 1198 [2015], quoting Matter of Estate of Prospect v New York State Teachers’ Retirement Sys., 13 AD3d 699, 700 [2004]). Given a court’s power to raise the issue, it is notable that the Court of Appeals and this state’s appellate courts, including this Court, have long entertained challenges to municipalities’ legislative actions in regard to zoning ordinances without requiring the joinder of every property owner whose rights are affected by the ordinance at issue … . ]). This has been true even when the ordinance at issue is one that, on its face, is likely to dramatically affect the property rights held by real property owners (see e.g. Matter of Wallach v Town of Dryden, 23 NY3d 728, 740 [2014]). Although this Court has, in limited cases, found property owners to be necessary parties in regard to legal challenges to municipal ordinances that affect the property owners’ rights, it has only done so in cases where the owners had obtained an actual approval pursuant to the challenged zoning ordinance that would be adversely impacted by a judgment annulling that ordinance … . Matter of Hudson Riv. Sloop Clearwater, Inc. v Town Bd. of The Town of Coeymans, 2016 NY Slip Op 07358, 3rd Dept 11-10-16

MUNICIPAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ZONING (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ENVIRONMENTAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/CIVIL PROCEDURE (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)

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FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS.

The Fourth Department determined father, who was incarcerated in Michigan, was afforded due process in the proceedings in which his petition for visitation was denied. However, the court noted that Family Court did not have the power, under the circumstances, to prohibit any further petitions by father:

… [W]e agree with the father that the court erred in sua sponte imposing conditions restricting him from filing new petitions. It is well settled that “[p]ublic policy mandates free access to the courts” … , but ” a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will’ ” … . Here, however, there is no basis in the record from which to conclude that the father had engaged in meritless, frivolous, or vexatious litigation, or that he had otherwise abused the judicial process … . Matter of Otrosinka v Hageman, 2016 NY Slip Op 07553, 4th Dept 11-10-16

FAMILY LAW (FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS)/CIVIL PROCEDURE (FATHER DID NOT ABUSE THE JUDICIAL PROCESS, FAMILY COURT SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS)

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PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS.

The First Department, reversing (modifying) Supreme Court, determined plaintiff had stated a cause of action under the New York City Human Rights Law for sexual orientation-based discrimination:

Plaintiff’s allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff’s allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment … . Defendant’s argument that plaintiff has not alleged that he was treated worse than similarly situated captains — as opposed to correction officers — is unavailing. Suspension and demotion are, on their faces, adverse employment actions. Defendant’s argument is, effectively, that those actions were warranted by plaintiff’s conduct while a captain, but this argument goes more properly to the second leg of the … burden-shifting framework … , namely rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action, and is misplaced at this early procedural juncture. James v City of New York, 2016 NY Slip Op 07400, 1st Dept 11-10-16

EMPLOYMENT LAW (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/HUMAN RIGHTS LAW (NYC) (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/CIVIL PROCEDURE (MOTION TO DISMISS, PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)/CPLR 3211 (a)(7) (PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS)

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EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT DISCLOSURE NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED.

The First Department, in remanding for a new trial, determined (1) the expert disclosure notice provided by the defense was sufficient, and (2) plaintiff should have been allowed, during the trial, to submit an expert disclosure notice for a rebuttal witness.  Plaintiff alleged his foot was run over by a bus:

After the defense rested, plaintiff’s attorney sought permission to call two rebuttal witnesses. He submitted a CPLR 3101(d)(1) notice for an expert in biomechanical medicine, arguing that the disclosure notice for Dr. Kurtz had provided no indication that the doctor’s opinion was based on the lack of tread marks or injury to the metatarsals and ankle. He argued that the notice’s insufficiency had not allowed him to prepare an expert witness to address these issues directly. His proposed expert would demonstrate, by use of an anatomical model of a foot, that plaintiff’s foot could have been positioned after he fell in such a manner that when the bus wheel rolled over his foot, his ankle and upper foot would not have been injured as Dr. Kurtz claimed. The court denied his request based on the timing of the notice and its reasoning that no rebuttal was needed. …

We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify … . * * *

… [N]otwithstanding the delay by plaintiff in providing a CPLR 3101(d)(1) disclosure for his medical expert, the trial court, in the interest of justice, should have permitted the medical expert to testify in rebuttal. The court had allowed Dr. Kurtz to opine that there were inconsistencies between the claim of how the accident occurred and the resulting injuries, and although the testimony was not in his expertise, it was heard by the jury and opened the door to the necessity for plaintiff to produce a medical expert to attempt to rebut those opinions. Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394, 1st Dept 11-10-16

 

CIVIL PROCEDURE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EVIDENCE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/REBUTTAL EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)

CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION.

The Second Department determined the complaint against a Chinese national was properly dismissed for lack of jurisdiction. The court explained the law re: (1) the burdens of proof for the motion to dismiss, (2) the procedure when discovery is required to determine jurisdiction, (3) the definition of “domicile” and (4) the nature of business transactions which will provide New York with jurisdiction:

… [T]he plaintiffs failed to make a prima facie showing that the defendant was domiciled in New York at the time the action was commenced in July 2013. Evidence of the defendant’s ownership of a cooperative apartment in Queens is, on its own, insufficient to confer personal jurisdiction over him absent evidence of his intent to make the apartment his “fixed and permanent home” … . The record demonstrated that the defendant resided in Shanghai, China, while his wife and daughter resided in the cooperative apartment in Queens. It was undisputed that the defendant had not even visited New York since March 2013. * * *

The transaction of business is established where it is shown that a ” defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'”… .

” Purposeful activities are those with which a defendant, through volitional acts, avails [himself or herself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws'” … . A single transaction in New York may suffice to invoke jurisdiction even if the defendant never enters the state, provided that the activity was purposeful and ” there is a substantial relationship between the transaction and the claim asserted'”… .  Indeed, absent ” some articulable nexus'” between a defendant’s purposeful business activities in the state and the plaintiff’s claims, personal jurisdiction pursuant to CPLR 302(a)(1) may not be exercised … .

Here, the sole purposeful activity cited by the plaintiffs in support of their argument that the defendant is subject to personal jurisdiction pursuant to CPLR 302(a)(1) is the employment relationship between Crystal Window and the defendant. However, the alleged wrongdoing upon which the complaint primarily is based occurred during the defendant’s employment with Huai’an Crystal, a Chinese company, prior to any employment with Crystal Window. Chen v Guo Liang Lu, 2016 NY Slip Op 07290, 2nd Dept 10-9-16

 

CIVIL PROCEDURE (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)/JURISDICTION (PERSONAL) (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)

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PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED.

The Second Department determined plaintiff loan service did not demonstrate standing to bring this foreclosure action. The affidavit submitted by the plaintiff did not meet the requirements of the business records exception to the hearsay rule. In addition, an affidavit submitted with the reply papers could not be considered:

…[T]he plaintiff relied on the affidavit of Jaclyn Holloway, an assistant secretary of Nationstar Mortgage, LLC (hereinafter Nationstar). Holloway alleged that, after the action was commenced, the plaintiff delivered the note to NationStar. She alleged that, “pursuant to the business records of [the plaintiff],” the plaintiff had physical possession of the note when it commenced the action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Holloway under the business records exception to the hearsay rule (see CPLR 4518[a]) since Holloway did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . Consequently, Holloway’s allegations based on those records were inadmissible … , and, therefore, insufficient to meet the plaintiff’s prima facie burden to establish its standing … .

The plaintiff could not rely on the affidavit of its vice president to meet its prima facie burden since the affidavit was improperly submitted for the first time in its reply papers … . Aurora Loan Servs., LLC v Baritz, 2016 NY Slip Op 07154, 2nd Dept 11-2-16

 

FORECLOSURE (PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/EVIDENCE (FORECLOSURE, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/CIVIL PROCEDURE (REPLY PAPERS, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/REPLY PAPERS (PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/

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