Obtaining Leave of Court to Submit Evidence in Reply Papers for ‘Good Cause Shown’

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 [1999]).”).

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.

R. A. Klass
Your Court Street Lawyer

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Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action

When a former client sues his attorney for legal malpractice, the defendant-attorney/law firm will almost invariably put forward, as part of its defense of the law suit, the Affirmative Defense of Statute of Limitations. In New York State, the period in which an attorney may be sued (whether for a tort [civil wrong] or breach of contract) is generally three (3) years from the date of malpractice. If the client does not sue the attorney/law firm within the applicable Statute of Limitations period, then the case is “time barred” and may be dismissed as having been filed too late.

When the defendant attorney alleges in his Answer to the law suit that the action is barred by the Statute of Limitations, it is essential to deal with the issue as soon as practicably possible. One effective way is to make a motion to the trial judge to “strike” (or dismiss) the Affirmative Defense from the Answer. Civil Practice Law and Rules [CPLR] Section 3211(b) provides that a party may move to strike an affirmative defense.

Affirmative Defense – Statute of Limitations:

In a recent case, the defendant law firm asserted the Affirmative Defense that the legal malpractice action was barred by the applicable statute of limitations. In response, Richard A. Klass, Your Court Street Lawyer, brought a motion to dismiss the Affirmative Defense. The motion requested that this affirmative defense be stricken, since it was alleged that the plaintiff-injured person brought the action within the applicable three-year statute of limitations period, as specified in CPLR 214(6).

CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.

The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].

In the recent case, the allegation of legal malpractice against the defendant law firm was that there was a ‘blown’ statute of limitations because the law firm did not timely sue the potentially liable party. In that situation, the New York State Court of Appeals (New York’s highest court) has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:

A person has one year from the date a claim accrues to commence an action against a public authority such as LIRR (Public Authorities Law Section 1276(2). The complaint must contain an allegation that at least 30 days have elapsed since the authority was presented with a demand or claim and that the authority has neglected or refused to adjust or pay the claim. This “stay” of 30 days is not counted as part of the limitations period and the plaintiff therefore may serve a complaint at any time up to one year and 30 days after the claim has accrued.

In the case, the plaintiff’s incident was alleged to have occurred on June 4, 2003. According to Public Authorities Law §1276, an action would have to have been brought against the LIRR within one year and thirty days after the incident. The defendant law firm was alleged to have failed to timely do so and the time in which to do so passed on their ‘watch.’

The Continuous Representation Toll:

The accrual of the three-year statute of limitations is ‘tolled’ during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].

In the case, the defendant law firm was alleged to have continuously represented the injured plaintiff up until August 2007, as represented by the proceedings brought on his behalf and the correspondence between the parties. Accordingly, the Statute of Limitations in which to sue the defendant law firm for legal malpractice for having missed the opportunity to have sued the proper party for the incident that resulted in the client’s injury started ticking when the law firm no longer represented him.

R. A. Klass
Your Court Street Lawyer

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Asking the Court to Grant Partition and Sale of Jointly-Owned Property

In a recent case, in which Richard A. Klass, Your Court Street Lawyer, represented one of three owners of real property asked the trial judge to grant ‘summary judgment’ against the other owners, granting his motion to partition and sell the real property at auction. In support of the motion, it was requested that the court grant partition and sale, in accordance with Real Property Actions and Proceedings Law [RPAPL] Article 9.

It was also requested that the court order the distribution of the net proceeds  from the auction sale of the real property to the parties in one-third interests, along with crediting the plaintiff for the moneys paid at closing when the property was first purchased.

RPAPL Section 901 provides that one who holds an interest in real property as a tenant in common may bring an action against the other tenants-in-common for the partition or sale of the property. The action was brought by Plaintiff as a tenant-in-common against the other two owners. The Plaintiff had to prove the following:

A: Plaintiff is ‘seised’ with an interest in the Property:

In the action, there was no issue of fact that Plaintiff had a right to possession of the property as a co-tenant, which is all that is needed to maintain an action for partition and sale. See, Dalmacy v. Joseph, 297 AD2d 329 (2d Dept. 2002). He was one of the three owners of the property, as indicated on the face of the Deed.

Pursuant to RPAPL 915, it was requested that the court issue an Order determining the parties’ rights, shares, and interest in and to the property.

B: Physical partition would be prejudicial:

Then, the plaintiff had to show that the property could not be physically partitioned in order to sell the entire property as one. In that case, a physical partition of the house would not have been practical and without prejudice to the owners, given that it was a three story brownstone. See, e.g. Cheslow v. Huttner, 13 Misc.3d 1224(A) (Sup. Ct., NY Co. 2006) (physical partition of a townhouse would be greatly prejudicial to the owners); Donlon v. Diamico, 33 AD3d 841 (2d Dept. 2006) (plaintiff established her entitlement to summary judgment directing the sale of the property because partition alone could not be made without great prejudice to the owners).

Based upon RPAPL 915, where it would be prejudicial to the owners to physically partition the property, the court should direct the property to be sold.

C: Plaintiff should be credited for the down payment:

Since partition, although statutory, is equitable in its nature, the court may compel the parties to do equity between themselves when adjusting the proceeds of the sale. Oliva v. Oliva, 136 AD2d 611. It has been held that a court may consider, among its factors of considering the equities of the partition and sale action, the down payment made by a co-tenant. Perrin v. Harrington, 146 AD 292.

R. A. Klass
Your Court Street Lawyer

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Plaintiffs Should Be Permitted to Amend the Complaint Pursuant to CPLR 3025

Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.

New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. See, Kushner v. Queens Transit, 97 AD2d 432 (2d Dept. 1983); Sotomayor v. Princeton Ski Outlet Corp., 199 AD2d 197 (1st Dept. 1993). It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice. Zacher v. Oakdale Islandia Ltd. Partnership, 211 AD2d 712 (2d Dept. 1995); Santori v. Met Life, 11 AD3d 597 (2d Dept. 2004).

In a recent case litigated by Richard A. Klass, Your Court Street Lawyer, it was urged that, since the action had not been pending for a significant period of time, and was not on the eve of trial, no prejudice could be shown by defendants to the amendment of the Complaint. See, e.g., Kopel v. Chiulli, 175 AD2d 102 (2d Dept. 1991). Case law has held that delay in seeking to amend the Complaint does not bar such relief. Haven Associates v. Douro Realty Corp., 96 AD2d 526 (2d Dept. 1983).

Finally, Plaintiff provided the trial court with a copy of the proposed Amended Complaint to be served upon the defendants. See, Anderson Properties Inc. v. Sawhill Tubular Division Cyclops Corp., 149 AD2d 949 (4th Dept. 1989).

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