Opinion
629 CA 19-00788
08-20-2020
James E. CONARTON, on Behalf of Himself and All Persons Similarly Situated, Plaintiff-Respondent, v. HOLY SMOKE BBQ AND CATERING, LLC, Defendant-Appellant.
KNYCH & WHRITENOUR, LLC, SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL), FOR DEFENDANT-APPELLANT. CERIO LAW OFFICES, SYRACUSE (MICHAEL D. ROOT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
KNYCH & WHRITENOUR, LLC, SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL), FOR DEFENDANT-APPELLANT.
CERIO LAW OFFICES, SYRACUSE (MICHAEL D. ROOT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order that granted plaintiff's motion for class action certification and denied defendant's cross motion to dismiss the complaint. Initially, although it is generally improper for the moving party to submit evidence for the first time with its reply papers, Supreme Court may consider such evidence where, as here, the opposing party has the opportunity to submit a surreply (see Ferrari v. National Football League , 153 A.D.3d 1589, 1590, 61 N.Y.S.3d 421 [4th Dept. 2017] ). Contrary to defendant's contention, we conclude that the court properly granted the motion inasmuch as plaintiff relied on evidence that satisfied the five prerequisites set forth in CPLR 901 (a) (see Ferrari , 153 A.D.3d at 1591-1593, 61 N.Y.S.3d 421 ), and the factors set forth in CPLR 902 (see id. at 1593, 61 N.Y.S.3d 421 ). We have reviewed defendant's remaining contentions and conclude that they do not require reversal or modification of the order.