In litigation, parties may bring motions for dismissal of the action or affirmative defenses, or move for ‘summary judgment’ (that there are no genuine issues of fact and the judge can decide the case on the law alone). Generally, the moving party puts forward all of its proof in support of its motion, including any affidavits, documents or photographs. The opposing party then puts forward all of its proof. At that point, it is inappropriate for either party to provide additional facts in reply papers, as courts want to give each party an opportunity to properly respond to the facts alleged in the original papers. It would otherwise be unfair.
Sometimes, however, additional facts or proof become necessary for various reasons. In that situation, the party seeking to provide additional proof must show “good cause” for having to do it.
Pursuant to binding Appellate Division, First and Second Department precedents, supplemental affirmations and/or sur-reply’s are permissible upon leave of the court with good cause shown, particularly where (1) the movant submits evidence for the first time in its reply papers or (2) “where the offering party’s adversaries responded to the newly presented claim or evidence [citations omitted].” Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 381-382, 822 N.Y.S.2d 264, 266 (1st Dep’t 2006); see Gastaldi v. Chen, 56 A.D.3d 420, 420, 866 N.Y.S.2d 750, 751 (2d Dep’t 2008) (“The Supreme Court providently exercised its discretion in considering the surreply of the plaintiffs, which was in response to the gap-in-treatment argument raised in the defendants’ reply papers for the first time (see Allstate Ins. Co. v. Raguzin, 12 A.D.3d 468, 469, 784 N.Y.S.2d 644).”); Hoffman v. Kessler, 28 A.D.3d 718, 719, 816 N.Y.S.2d 481, 482 (2d Dep’t 2006) (“Further, the court properly considered the affidavit of a medical expert submitted by the plaintiffs in reply papers because the defendants had an opportunity to respond and submit papers in sur-reply (see Guarneri v. St. John, 18 A.D.3d 813, 813-814, 795 N.Y.S.2d 462; Matter of Hayden v. County of Nassau, 16 A.D.3d 415, 416, 790 N.Y.S.2d 404; Basile v. Grand Union Co., 196 A.D.2d 836, 837, 602 N.Y.S.2d 30; Fiore v. Oakwood Plaza Shopping Ctr., 164 A.D.2d 737, 739, 565 N.Y.S.2d 799, affd. 78 N.Y.2d 572, 578 N.Y.S.2d 115, 585 N.E.2d 364, cert. denied 506 U.S. 823, 113 S.Ct. 75, 121 L.Ed.2d 40).”); Anderson v. Beth Israel Medical Center, 31 A.D.3d 284, 288, 819 N.Y.S.2d 241, 244 (1st Dep’t 2006);Traders Co. v. AST Sportswear, Inc., 31 A.D.3d 276, 277, 819 N.Y.S.2d 239, 240-241 (1st Dep’t 2006) (“Defendants also belatedly submitted papers containing a security deposit argument without demonstrating good cause (CPLR 2214[c] ), which was improperly relied upon by the IAS Court (see Pinkow v. Herfield, 264 A.D.2d 356, 358, 695 N.Y.S.2d 20 ).”).
Further binding Appellate Division, Second Department precedents hold that “[c]ontrary to the [movant’s] contention, the court did not err by considering the evidence in the [cross-movant’s] reply papers because it was submitted in direct response to allegations raised in their opposition papers [citations omitted].” Conte v. Frelen Associates, LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258, 260 (2d Dep’t 2008); see Jones v. Geoghan, 61 A.D.3d 638, 639, 876 N.Y.S.2d 508, 510 (2d Dep’t 2009) (“Although the appellants expressly raised a defense based on the emergency doctrine for the first time in their reply papers, we may consider it on appeal. In the first instance, the defense was raised in direct response to the allegation made in the plaintiff’s opposition papers that the decedent was struck by a van in motion, rather than thrown into the path of a stopped van (see Conte v. Frelen Assoc., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258; Ryan Mgt. Corp. v. Cataffo, 262 A.D.2d 628, 630, 692 N.Y.S.2d 671; see also Kelsol Diamond Co. v. Stuart Lerner, 286 A.D.2d 586, 587, 730 N.Y.S.2d 218).”); Ryan Management Corp. v. Cataffo, 262 A.D.2d 628, 630, 692 N.Y.S.2d 671, 672 (2d Dep’t 1999) (“The defendant characterized the evidence in the reply papers as new evidence not properly before the court.Accordingly, the defendant argued, the court erred in granting summary judgment to the defendant. …Because the evidence submitted by the plaintiff in its reply papers was in direct response to allegations raised by the defendant in his opposition papers, it was properly considered by the court.”).
In a recent action litigated by Richard A. Klass, Your Court Street Lawyer, the defendant submitted photographs of a sign with defendant’s reply affirmation, after plaintiff’s opposition and cross-motion had been submitted, as evidence that the entrance near a certain street, within 50-60 feet of which plaintiff had repeatedly testified his accident occurred, was located at another street, thousands of feet away. In his reply affirmation on his cross-motion, not in a sur-reply, plaintiff requested leave of this Honorable Court to submit (a) further photographs clearly depicting the entrance gate at the particular street indicated, with an identical sign about which he had been testifying, adjacent to which plaintiff testified his accident occurred in his EBT, as well as (b) a supplemental affidavit from plaintiff, authenticating these photographs as fair and accurate representations of the entrance about which he had testified. Accordingly, as the evidence (a) was submitted with a reply affirmation on his cross-motion, not a sur-reply, (b) plaintiff properly asked leave of the court to submit additional evidence in his reply on his cross-motion, in order to respond to the photograph submitted in defendant’s reply on the underlying motion, and (c) defendant has availed itself of the opportunity to respond thereto, this evidence is properly before this Honorable Court. See Gastaldi, 56 A.D.3d at 420, 866 N.Y.S.2d at 751; Conte, 51 A.D.3d at 621, 858 N.Y.S.2d at 260; Kennelly, 33 A.D.3d at 381-382, 822 N.Y.S.2d at 266; Traders Co., 31 A.D.3d at 277, 819 N.Y.S.2d at 240-241.
— by Richard A. Klass, Esq.
“Your Court Street Lawyer”