Chavez v. Bancker Construction Corp.

—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. 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 (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 AD2d 358; Turkish Airlines v American Airlines, 249 AD2d 463; Galatti v Alliance Funding Co., 228 AD2d 550; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658). The appellant otherwise failed to demonstrate its entitlement to summary judgment. Bracken, J. P., Sullivan, Altman and Krausman, JJ., concur.