Valenti v. Camins

Because I believe that the motion court erred in failing to consider evidence submitted by the defendants in reply, I must respectfully dissent. The defendants argue that the motion court erred by not considering the new evidence they submitted on reply — Dr. Schneider’s affirmation and the April 12, 2006 X ray attached thereto — because the newly submitted evidence responded to arguments and a theory of liability first raised in the plaintiffs opposition papers. In my view, they are entirely correct. Moreover, contrary to the majority’s view, the record clearly shows, *524as set forth more fully…