Flores v. Nikac

121 A.D.3d 577, 993 N.Y.S.2d 910

Opinion

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 16, 2014, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the common-law negligence cause of action, unanimously affirmed, without costs.

Defendants’ initial moving papers failed to establish prima facie that they were not negligent in connection with the decedent’s death.

It was only in reply to plaintiff’s opposition to the motion that defendants raised arguments specifically addressing plaintiff’s allegations, their duty under the common law, and the evidence in the record (for example, they contend that defendant Nina Nikac cannot be held liable for the decedent’s death because she was not the owner of the building). Since these arguments were not timely raised, we do not consider them (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 561-562 [1st Dept 1992]).

Concur — Friedman, J.E, Sweeny, Acosta, Saxe and Manzanet-Daniels, JJ.