SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
May 23, 2011
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered June 22, 2010.
Ilitescli v Izi
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 23, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The order denied defendant's motion to dismiss the complaint.
ORDERED that the order is affirmed, without costs.
Plaintiff brought this action to recover damages she allegedly sustained as a result of injuries inflicted on her dog by defendant's dog. Defendant moved to dismiss the complaint on the grounds that plaintiff had failed to assert any actionable conduct in the complaint, and that an action between the same parties had been dismissed in the Small Claims Part of the Civil Court "on account of this action." In a reply affirmation, defendant's attorney argued for the first time that the action should be dismissed because plaintiff had failed to plead that defendant knew or should have known of his dog's dangerous propensities; this contention is the sole argument defendant makes on appeal.
Legal arguments raised for the first time in reply papers should not be considered by the motion court unless the nonmoving party is afforded an opportunity to respond to such claims (see e.g. Miterko v Peaslee, 80 AD3d 736 ; Alrobaia v Park Lane Mosholu Corp., 74 AD3d 403 ). Here, there is no indication in the record that plaintiff was given an opportunity to respond to the argument first made by defendant in his reply papers. Accordingly, the order of the Civil Court denying defendant's motion to dismiss the complaint is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 23, 2011
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