Key Takeaway
Valdan allowed reply documents answering a new IME-address objection. Read the chronology and the limits on making a summary judgment case in reply.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
The insurer could submit its NF-2 and police report in reply in Valdan Acupuncture v 21st Century Advantage. Those documents answered an address objection first raised in opposition. The May 24, 2019 decision granted the insurer summary judgment; it did not give moving parties a general right to save essential proof for reply.
Historical note: Valdan (2019) applies the responsive-reply exception to a particular address dispute; current motion practice requires separating that response from proof needed for the initial summary judgment showing.
Last reviewed: September 2026.
The dates explain the reply ruling
The insurer’s moving papers contained evidence of IME-notice mailing, nonattendance and timely denial. The notices went out in August and September 2011. The provider then pointed to a different address on bills, the earliest dated October 18, 2011.
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The reply supplied the sworn July NF-2 and accident report. Both gave the address used for the notices, which the court found was the only address the insurer knew at the time of mailing. The later bills therefore did not establish that those earlier notices had been sent to the wrong known address.
Responsive evidence versus a missing initial showing
Valdan states the general bar against making a prima facie summary judgment showing for the first time in reply, then applies the exception for evidence responding to allegations first raised in opposition. The decision’s address chronology explains why the exception applied. It does not resolve every dispute over reply papers.
Jason’s original comments reflect his reaction to the result. His department-wide observation is not a holding of Valdan and should not substitute for the governing cases on a particular motion. Compare By MD’s receipt dispute and Maya’s deficient mailing affidavit when separating an initial proof gap from a factual objection.
Jason Tenenbaum’s original note (2019)
The two passages below preserve Jason’s original reaction, including its wording; the department-wide observation is commentary rather than a holding of Valdan.
The new evidence in reply rule has always been amorphous.
What I found strange is that I always through the Appellate Term, Second Department required an NF-2 or LOR in the moving papers to make out a no-show case. Thus, providing this evidence in Reply would be making a prima facie case in Reply. The First Department has clearly held that the medical provider or EIP has the burden to prove the wrong evidence in opposition.
Frequently Asked Questions
Can I submit new evidence in reply papers?
Valdan allowed documents answering an address allegation first raised in opposition. It also recognized the general rule against establishing a prima facie summary judgment case for the first time in reply. Whether evidence is genuinely responsive depends on the motion record.
What constitutes a “new allegation” in opposition?
In Valdan, the new allegation was that IME notices went to the wrong address, based on later-dated bills. The reply documents showed which address the insurer knew when it mailed the notices. The decision does not say that any unanticipated legal argument permits new evidence.
How should I prepare for potential opposition arguments?
As a practical matter, identify the evidence needed for the initial motion and preserve the underlying notice and address chronology. Valdan should not be treated as a reason to withhold essential proof for reply.
What happens if I submit improper new evidence in reply?
Evidence first offered in reply may not establish the showing that belonged in the moving papers. Whether a court will consider it requires review of the governing authority and any applicable responsive-evidence exception.
Should I object to new evidence in reply papers?
Examine whether it answers a factual allegation first raised in opposition or supplies an element missing from the original motion. Valdan allowed the former on its address chronology; it does not decide whether an objection is appropriate in a different case.
Connect to the Encyclopedia
Start with the IME no-show topic hub.
- By MD: mailing proof and the presumption of receipt
- Maya companion cases: insufficient mailing proof
- Beckles: the NF-3 and duly noticed examinations
- Success Rehab: the post-claim IME examination date
- Acupuncture Pain Management: proof of nonattendance
For review of a particular notice, claim file or motion, contact the Law Office of Jason Tenenbaum.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Feb 1, 2020Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Can I submit new evidence in reply papers?
Valdan allowed documents answering an address allegation first raised in opposition. It also recognized the general rule against establishing a prima facie summary judgment case for the first time in reply. Whether evidence is genuinely responsive depends on the motion record.
What constitutes a “new allegation” in opposition?
In Valdan, the new allegation was that IME notices went to the wrong address, based on later-dated bills. The reply documents showed which address the insurer knew when it mailed the notices. The decision does not say that any unanticipated legal argument permits new evidence.
How should I prepare for potential opposition arguments?
As a practical matter, identify the evidence needed for the initial motion and preserve the underlying notice and address chronology. Valdan should not be treated as a reason to withhold essential proof for reply.
What happens if I submit improper new evidence in reply?
Evidence first offered in reply may not establish the showing that belonged in the moving papers. Whether a court will consider it requires review of the governing authority and any applicable responsive-evidence exception.
Should I object to new evidence in reply papers?
Examine whether it answers a factual allegation first raised in opposition or supplies an element missing from the original motion. Valdan allowed the former on its address chronology; it does not decide whether an objection is appropriate in a different case.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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