In Rhodes v. City Of New York, the First Department reaffirmed its rule prohibiting new arguments from being advanced for the first time in reply papers in support of motions for summary judgment. In Rhodes, an expert report contained an improper date and as such the court did not consider the expert’s opinion. In a motion to renew and reargue, the expert affidavit date was changed and the court considered the affidavit.

The First Department, however, found the lower court’s consideration of the affidavit on the motion to renew improper as the affidavit was attached to reply papers on the motion to renew. Moreover, the First Department recognized that the information was known to the parties at the time the affidavit was initially submitted and as such, was not a new fact that formed a proper basis for the motion to renew.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07569.htm