Opinion
2003-04900.
Decided April 19, 2004.
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.
Joseph A. Maria, P.C., White Plains, N.Y. (Frances Dapice Marinelli of counsel), for appellant.
Bailly McMillan, LLP, White Plains, N.Y. (Brian M. Healy of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
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 A.D.3d 317, 318; Davidson Metals Corp. v. Marlo Development Co., 262 A.D.2d 599). In any event, the affidavit of the plaintiff's 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 A.D.2d 477).
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.