Flores v Nikac

Flores v Nikac 2014 NY Slip Op 07280 Decided on October 23, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2014
Friedman, J.P., Sweeny, Acosta, Saxe, Manzanet-Daniels, JJ.
13287 303858/11

[*1] Cristina Flores, as Administratrix of the Goods, Chattels and Credits of the Estate of Samantha R. Gonzalez, Plaintiff-Respondent,

v

Gjelosh Nikac, et al., Defendants-Appellants.

Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellants.

Joshua Annenberg, New York, for respondent.

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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2014

CLERK