Opinion
477 CA 14-01406
07-10-2015
Robert H. METCALF, Plaintiff–Respondent–Appellant, v. David M. CUNNINGHAM, Individually and as Fiduciary for the Estate of Joan S. Cunningham, Deceased, Peter Cunningham, Kim Cunningham, Possibly Known as Kimberly Cunningham, Defendants–Appellants–Respondents, et al., Defendants.
Bond, Schoeneck & King PLLC, Rochester (Jeffrey F. Allen of Counsel), for Defendants–Appellants–Respondents. Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent–Appellant.
Bond, Schoeneck & King PLLC, Rochester (Jeffrey F. Allen of Counsel), for Defendants–Appellants–Respondents.
Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent–Appellant.
Opinion
MEMORANDUM:We affirm for reasons stated in the amended decision at Supreme Court. We write only to note that certain contentions of David M. Cunningham, individually and as fiduciary for the estate of Joan S. Cunningham, deceased, Peter Cunningham and Kim Cunningham, possibly known as Kimberly Cunningham (collectively, defendants), are not properly before us on this appeal. Defendants' contention that plaintiff either waived the right to sue defendants for their conduct occurring before plaintiff executed a purported easement, or is estopped from asserting a claim for such conduct, is raised for the first time on appeal, and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 ). Similarly, defendants' contention that they are entitled to counsel fees arising from plaintiff's motion for summary judgment is raised for the first time in their reply brief on appeal, and “it is well settled that a contention raised for the first time in a reply brief is not properly before us” (Becker–Manning, Inc. v. Common Council of City of Utica, 114 A.D.3d 1143, 1144, 980 N.Y.S.2d 651 ; see HSBC Bank USA, N.A. v. Prime, L.L.C., 125 A.D.3d 1307, 1307–1308, 4 N.Y.S.3d 786 ; Przesiek v. State of New York, 118 A.D.3d 1326, 1327, 988 N.Y.S.2d 328 ).It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CARNI, LINDLEY, SCONIERS, and DeJOSEPH, JJ., concur.