On October 21, 2021, the First Department issued a decision in Starr Indem. & Liab. Co. v, U.S. Adjustment Corp., 2021 NY Slip Op. 05799, holding the summary judgment cannot be based on evidence submitted for the first time on reply, explaining:
Even if plaintiffs had demonstrated that defendant was required to pay all ALAE, they failed to submit sufficient evidence of damages to permit an award of summary judgment in their favor. The sole damages evidence submitted in support of their motion was a summary chart appended to their unverified supplemental responses and objections to defendant’s interrogatories, which listed the total amounts plaintiffs paid in ALAE by category. Although plaintiffs later submitted a verified version of these responses and objections, which included the underlying data on which the chart was based, that version could not be considered in gauging whether plaintiffs made a prima facie showing of entitlement to judgment as a matter of law because it was submitted for the first time on reply. Absent evidence establishing the amount of ALAE paid by plaintiffs that defendant was supposed to pay, plaintiffs failed to demonstrate that they are entitled to recoup every dollar that defendant received from them but did not use to pay ALAE.
(Internal citations omitted).