Williams v. City of White Plains

6 A.D.3d 609, 775 N.Y.S.2d 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant City of White Plains appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 16, 2003, as denied its second motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant’s motion violated the rule against successive motions for summary judgment (see Klein v Auerbach, 1 AD3d 317, 318 [2003]; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599 [1999]). In any event, the affidavit of the plaintiffs engineering expert rebutted the appellant’s initial showing that it did not create the alleged defect (see CPLR 3212 [b]). Therefore, the Supreme Court properly denied the appellant’s second motion for summary judgment dismissing the complaint insofar as asserted against it.

The appellant’s claims which are raised for the first time in its reply brief are not properly before this Court (see Coppola v Coppola, 291 AD2d 477 [2002]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.