Opinion
Argued March 27, 2000.
May 15, 2000.
In an action to recover damages for personal injuries and wrongful death, the defendant Bancker Construction Corp., Inc., appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 12, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Ronan, McDonell Kehoe, Melville, N.Y. (Bob Giard of counsel), for appellant.
Morrison Wagner, New York, N.Y. (Eric H. Morrison of counsel), for plaintiff-respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for defendants-respondents.
Before: LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
The appellant did not assert the limited immunity provisions of Vehicle and Traffic Law § 1103 Veh. Traf.(b) as a basis for the granting of summary judgment in its favor until the submission of its reply papers, and thus the respondents did not have a fair opportunity to respond to that contention. Under these circumstances, that contention is not properly before this court, and need not be addressed (see, Matter of Falk v. Village of Scarsdale Zoning Bd. of Appeals, 254 A.D.2d 358; Turkish Airlines v. American Airlines, 249 A.D.2d 463; Galatti v. Alliance Funding Co., 228 A.D.2d 550; Matter of TIG Insurance Company v. Pellegrini, 258 A.D.2d 658). The appellant otherwise failed to demonstrate its entitlement to summary judgment.
BRACKEN, J.P., SULLIVAN, ALTMAN and KRAUSMAN, JJ., concur.