Jacobson v. Leemilts Petroleum, Inc.
Opinion of the Court
Bobby contends that the court erred in relying upon CPLR 1024, concerning the commencement of an action against an unknown party, as the basis for granting plaintiffs motion because that statute was referenced only in plaintiffs reply papers. We reject that contention. It is well settled that contentions raised for the first time in reply papers are not properly before the court (see DiPizio v DiPizio, 81 AD3d 1369, 1370 [2011]), but that was not the case here. Although plaintiffs original motion papers did not specifically refer to CPLR 1024, those papers stated that plaintiff was seeking to substitute Bobby in place of the relevant John Doe named in the complaint. Bobby, therefore, had notice that plaintiff was relying on that statute before plaintiffs reply. Contrary to Bobby’s further contention, plaintiff demonstrated that he made “genuine effort[s] to ascertain [Bobby’s] identify] prior to the running of the [s]tatute of [l]imitations” (Luckern v Lyonsdale Energy Ltd. Partnership, 229 AD2d 249, 253 [1997] [internal quotation marks omitted]). Bobby also contends that the description of John Doe in the summons and complaint for which it was substituted was inadequate inasmuch as it did not provide Bobby with the requisite notice that it was the intended defendant (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1992]). That contention is raised for the first time on appeal
In light of our determination that CPLR 1024 applies, we see no need to address Bobby’s contention concerning the relation-back doctrine. Present — Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.