        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

477
CA 14-01406
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


ROBERT H. METCALF,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID M. CUNNINGHAM, INDIVIDUALLY AND AS
FIDUCIARY FOR THE ESTATE OF JOAN S.
CUNNINGHAM, DECEASED, PETER CUNNINGHAM,
KIM CUNNINGHAM, POSSIBLY KNOWN AS KIMBERLY
CUNNINGHAM, DEFENDANTS-APPELLANTS-RESPONDENTS,
ET AL., DEFENDANTS.


BOND, SCHOENECK & KING PLLC, ROCHESTER (JEFFREY F. ALLEN OF COUNSEL),
FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

HALL AND KARZ, CANANDAIGUA (PETER ROLPH OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Ontario County (William F. Kocher, A.J.), entered October 29, 2013.
The order, among other things, denied the motion of David M.
Cunningham, individually and as fiduciary for the estate of Joan S.
Cunningham, deceased, Peter Cunningham and Kim Cunningham seeking to
dismiss plaintiff’s amended complaint.

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

     Memorandum: We affirm for reasons stated in the amended decision
at Supreme Court. We write only to note that certain contentions of
David M. Cunningham, individually and as fiduciary for the estate of
Joan S. Cunningham, deceased, Peter Cunningham and Kim Cunningham,
possibly known as Kimberly Cunningham (collectively, defendants), are
not properly before us on this appeal. Defendants’ contention that
plaintiff either waived the right to sue defendants for their conduct
occurring before plaintiff executed a purported easement, or is
estopped from asserting a claim for such conduct, is raised for the
first time on appeal, and thus is not properly before us (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985). Similarly,
defendants’ contention that they are entitled to counsel fees arising
from plaintiff’s motion for summary judgment is raised for the first
time in their reply brief on appeal, and “it is well settled that a
contention raised for the first time in a reply brief is not properly
before us” (Becker-Manning, Inc. v Common Council of City of Utica,
                                 -2-                           477
                                                         CA 14-01406

114 AD3d 1143, 1144; see HSBC Bank USA, N.A. v Prime, L.L.C., 125 AD3d
1307, 1307-1308; Przesiek v State of New York, 118 AD3d 1326, 1327).




Entered:   July 10, 2015                       Frances E. Cafarell
                                               Clerk of the Court
