         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1118
CA 12-00315
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


JOHN JACOBSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LEEMILTS PETROLEUM, INC., DOING BUSINESS AS
GETTY, ET AL., DEFENDANTS,
AND BOBBY PETROLEUM CORP., DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (THOMAS A. DIGATI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAW OFFICE OF JOHN J. FROMEN, ESQ., BUFFALO, MAGAVERN MAGAVERN GRIMM
LLP (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered June 2, 2011 in a personal injury action. The
order, among other things, granted plaintiff leave to amend his
summons and complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when a fuel pump suppression system at a gas
station (premises) suddenly activated, thereby causing caustic, fire-
retardant chemicals to be released onto him. In his summons and
complaint, plaintiff named various unknown defendants as “John Doe” in
the event that the named defendants were not the owners or operators
of the premises or were not responsible for the fuel pump suppression
system. After the complaint was filed, plaintiff’s attorney was
advised by an insurance company that defendant Bobby Petroleum Corp.
(Bobby) was the operator of the premises. After the relevant statute
of limitations expired, plaintiff moved by order to show cause for,
inter alia, leave to amend his summons and complaint to substitute
Bobby for the John Doe defendant identified as being responsible for
the operation of the premises. Supreme Court granted plaintiff’s
motion.

     Bobby contends that the court erred in relying upon CPLR 1024,
concerning the commencement of an action against an unknown party, as
the basis for granting plaintiff’s motion because that statute was
referenced only in plaintiff’s reply papers. We reject that
contention. It is well settled that contentions raised for the first
time in reply papers are not properly before the court (see Dipizio v
                                 -2-                          1118
                                                         CA 12-00315

Dipizio, 81 AD3d 1369, 1370), but that was not the case here.
Although plaintiff’s original motion papers did not specifically refer
to CPLR 1024, those papers stated that plaintiff was seeking to
substitute Bobby in place of the relevant John Doe named in the
complaint. Bobby, therefore, had notice that plaintiff was relying on
that statute before plaintiff’s reply. Contrary to Bobby’s further
contention, plaintiff demonstrated that he made “genuine effort[s] to
ascertain [Bobby’s] identit[y] prior to the running of the [s]tatute
of [l]imitations” (Luckern v Lyonsdale Energy Ltd. Partnership, 229
AD2d 249, 253 [internal quotation marks omitted]). Bobby also
contends that the description of John Doe in the summons and complaint
for which it was substituted was inadequate inasmuch as it did not
provide Bobby with the requisite notice that it was the intended
defendant (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).
That contention is raised for the first time on appeal and therefore
is not properly before us (see Murphy v Graham, 98 AD3d 833, 834;
Ciesinski v Town of Aurora, 202 AD2d 984, 985).

     In light of our determination that CPLR 1024 applies, we see no
need to address Bobby’s contention concerning the relation-back
doctrine.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
