Opinion
No. 18125/11.
2013-04-26
Claudia PIERRE, Plaintiff, v. Jermaine R. YOUNG, Angela D. Young and Daryl M. Polk, Defendants.
Boris Bernstein, Esq., Law Firm of Davidoff & Associates, for plaintiff Claudia Pierre. Arthur Gruener, Esq., Wollerstein and Futoran, for defendants Jermaine R. Young and Angela D. Young.
Boris Bernstein, Esq., Law Firm of Davidoff & Associates, for plaintiff Claudia Pierre. Arthur Gruener, Esq., Wollerstein and Futoran, for defendants Jermaine R. Young and Angela D. Young.
Amelia Dweck, Esq., Morris Duffy Alonso & Faley, for defendant Daryl M. Polk.
JACK M. BATTAGLIA, J.
Defendant Daryl M. Polk moves for an order, pursuant to CPLR 3212, dismissing the Verified Complaint as against him, on that ground that Plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d) as a result of the September 11, 2010 accident. In support, Defendant submits the affirmed report of orthopedist Michael Baskies, M.D., who examined Plaintiff on July 12, 2012, and the certified and signed transcript of Plaintiff's examination before trial.
Defendant establishes prima facie that Plaintiff did not sustain a “serious injury” to her cervical spine or lumbar spine, as alleged in her Verified Bill of Particulars, as a result of the September 11, 2010 accident. “A defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs.” (Kearse v. New York City Tr. Auth., 16 AD3d 45, 49–50 [2d Dept 2005]; see also Hayes v. Vasilios, 96 AD3d 1010 [2d Dept 2012]; Lim v. Flores, 96 AD3d 723, 723 [2d Dept 2012]; Ikeda v. Hussain, 81 AD3d 496, 496 [1st Dept 2011]; Style v. Joseph, 32 AD3d 212, 214 [1st Dept 2006]; Servones v. Toribio, 20 AD3d 330, 330 [1st Dept 2005].)
Contrary to Plaintiff's contention in opposition, since her Verified Bill of Particulars states that she was not confined to bed or home, and missed only two days from work, as a result of the accident, Defendant was not required to make a further showing as to the 90/180–day disability category of “serious injury.” ( See Beltran v. Powow Limo, Inc., 98 AD3d 1070, 1071 [2d Dept 2012]; Islam v. Makkar, 95 AD3d 1277, 1278 [2d Dept 2012]; Bamundo v. Fiero, 88 AD3d 831, 831–32 [2d Dept 2011]; compare Taylor v. Taylor, 87 AD3d 1129, 1130 [2d Dept 2011].)
In opposition, Plaintiff submits an Affidavit Pursuant to CPLR 4518(a) of William A. Weiner, D.O., and the Physician's Affirmations of Joseph Ferrara, M.D., Mathew Lefkowitz, M.D., and Gautam Khakhar, M.D.; together with medical records and reports incorporated by reference. None of it, however, is admissible as evidence on this motion because none of the doctor's statements qualifies as an affirmation admissible pursuant to CPLR 2106 because they are not “affirmed ... to be true under the penalties of perjury” ( see Offmann v. Singh, 27 AD3d 284, 284–85 [1st Dept 2006] ); and none qualifies as an affidavit pursuant to CPLR 2309 without an appropriate jurat and notary's signature or other showing of proper administration of the oath. ( See Slavenberg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801n [1981];United Talmudical Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 A.D.2d 547, 547–48 [2d Dept 1996]; Majestic Farms Supply, Ltd. v. Surowiec, 106 A.D.2d 777, 778–79 [2d Dept 1990]; see also Schwartz v. Sayah, 83 AD3d 926, 927 [2d Dept 2011].)
“[O]ne opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact ... or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form.” ( See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].) Here, no acceptable excuse is demonstrated, and none is apparent. ( See Grasso v. Angerami, 79 N.Y.2d 813, 814–15 [1991].)
Were Plaintiff's submissions in admissible form, they would raise triable issues sufficient to defeat Defendant's motion, in that they show positive objective findings, including restricted range of motion in Plaintiff's cervical spine and lumbar spine, both contemporaneous with the accident and on recent examination. ( See Perl v. Meyer, 18 NY3d 208, 217–18 [2011];Estrella v. Geico Inc. Co., 102 AD3d 730, 732 [2d Dept 2013]; Jung Hyun Yuk v. Liang Chen, 83 AD3d 1003 [2d Dept 2010]; Eusebio v. Yannetti, 68 AD3d 919 [2d Dept 2009].)
Defendant, however, did not object to the Court's consideration of Plaintiff's submissions on evidentiary grounds, and there is authority that, under some circumstances, where an opposing party fails to object to a submission that is not in admissible form, the objection is deemed “waived.” Some defects such as the absence of a certificate of authority or certificate of conformity ( seeCPLR 2309[c]; Real Property Law § 299–a), are considered sufficiently technical and non-prejudicial that they may be ignored by the court even where the opposing party has objected. ( SeeCPLR 2001; Rivers v. Birnbaum, 102 AD3d 26, 30 [2d Dept 2012]; Bey v. Neuman, 100 AD3d 581, 582 [2d Dept 2012]; Fredette v. Town of Southampton, 95 AD3d 940, 942 [2d Dept 2012]; Smith v. Allstate Ins. Co., 38 AD3d 522, 523 [2d Dept 2007].) There are limits, however; the oath must been “duly given” and the “oathgiver's authority ... secured later.” ( See Hall v. Elrac, Inc., 79 AD3d 427, 427–28 [1st Dept 2010]; Matapos v. Tech. Ltd. v. Compania Andina de Comercio Ltds., 68 AD3d 672, 673 [1st Dept 2009]; see also PRA III, LLC, 54 AD3d 917, 918 [2d Dept 2008].)
Although chiropractors are not among the professionals who may, pursuant to CPLR 2106, testify by affirmation rather than affidavit, in the absence of objection a chiropractor's affirmation will be accepted. ( See Akamnonu v. Rodriguez, 12 AD3d 187, 187 [1st Dept 2004]; Shinn v. Catanzaro, 1 AD3d 195, 197–98 [1st Dept 2003]; see also Bax v. Allstate Health Care, Inc., 26 AD3d 861, 863 [4th Dept 2006] [architect].) Where, however, the “affirmation” does not otherwise comply with CPLR 2106 in that it is not made “under the penalties of perjury,” it would appear that the result would be different. ( See O'Connor v. Singh, 16 Misc.3d 30, 31 [App Term, 1st Dept 2007]; see also Rivers v. Birnbaum, 102 AD3d at 45; but see Santiago v. Rodriguez, 38 AD3d 639, 640 [2d Dept 2007] [“chiropractor's report”].)
In the absence of objection, an orthopedist's report “that was affirmed under penalty of perjury but contained only a stamped facsimile signature” was accepted ( see Dowling v. Mosey, 32 AD3d 1190, 1191 [4th Dept 2006] ); as was a police officer's statement “subscribed and sworn to under the penalties of perjury ... [but] not sworn to before a notary public or commissioner of deeds” ( see Sam v. Town of Rotterdam, 248 A.D.2d 850, 851 [3d Dept 1998].) In other cases, statements of medical professionals have been accepted in the absence of objection, without specification by the court of the defect that would have otherwise precluded admissibility. ( See Gnahore v. Gonzales, 73 AD3d 690, 690–91 [2d Dept 2010] [“not in proper form”]; Scudera v. Mahbubur, 299 A.D.2d 535, 535 [2d Dept 2002] [“did not appear to be properly subscribed”]; see also Kibler v. Gillard Constr., Inc., 53 AD3d 1040, 1042 [4th Dept 2008] [code enforcement officer/”not properly sworn to before a notary public”].)
Except, perhaps, where the defect may be disregarded “if a substantial right of a party is not prejudiced” ( seeCPLR 2001), it is difficult to see the policy reasons for considering a document otherwise inadmissible on its face simply because an opposing party has not objected. The opposing party cannot be assumed to have purposely failed to object in an uncommon spurt of generosity, particularly where, as here, the opposing party is seeking dismissal of the action. If the lack of objection is the result of some deficiency on the part of the opposing party's counsel, either of competence or mere inattention, to allow the deficiency of one party's counsel to, in effect, cancel the deficiency of the other party's counsel is not obviously consistent with the minimal requirements of a judicial process.
Most importantly, where “the affirmation would be of no probative value because the affirmant would not be answerable for the crime of perjury should he make a false statement” ( see Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d at 801n), the alchemy of silence should not be sufficient to transform the statement into evidence.
The Court concludes, therefore, that where, as here, an “affirmation” or “affidavit” is not sworn to before an appropriate officer ( seeCPLR 2309) or affirmed “under the penalties of perjury” ( seeCPLR 2106), it cannot be considered as evidence on a motion for summary judgment ( seeCPLR 3212[b] ), even if there is no objection by an opposing party, and even if it is offered in opposition if there is no reasonable excuse for not submitting the document in admissible form. The result here is that Defendant's motion must be granted.
The question, then, becomes whether Plaintiff should be granted leave to renew her opposition to summary dismissal, and, if so, under what conditions, if any. Generally, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion.” ( SeeCPLR 2221[e][2], [3].) “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form.” (Hackney v. Monge, 103 AD3d 844, 845 [2d Dept 2013] [internal quotation marks and citation omitted].) Characterizing the failure to provide the document in admissible form on the prior motion as “inadvertent,” the Second Department has held that it was error for the trial court to deny leave to renew when the document in admissible form is later proferred. ( See Hackney v. Monge, 103 AD3d at 45;Schwelnus v. Urological Assoc. of L.I., P.C., 94 AD3d 971, 972 [2d Dept 2012]; Del Bene v. Frank C. Perry, DDS, P.C., 83 AD3d 771, 772 [2d Dept 2011]; Darwick v. Paternoster, 56 AD3d 714, 714–15 [2d Dept 2008]; see also Gonzales v. City of New York, 65 AD3d 569, 569 [2d Dept 2009]; Miller v. Duffy, 162 A.D.2d 438, 439–40 [2d Dept 1990].)
Such judicial forgiveness, however, under the rubric of “law office failure” ( see Hackney v. Monge, 103 AD3d at 845;see alsoCPLR 2005) can be unfair to other parties, and, at the least, encourage sloppy practice. Although not without limit ( see HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [2d Dept 2009] ), the Court has discretion to condition renewal or vacatur of an order, including by monetary payment to other parties. ( See Assael v. 15 Broad Street, LLC, 84 AD3d 846, 847 [2d Dept 2011]; Hudson v. Gouldbourne, 83 AD3d 1001 [2d Dept 2011]; Golden v. Transport Taxi & Limousine Serv., 80 A.D.2d 870 [2d Dept 1981].)
A good starting point would be the awarding of motion costs, “which requires no showing of frivolousness.” ( See Babikian v. Nikki Midtown, LLC, 60 AD3d 470, 472 [1st Dept 2009]; see alsoCPLR 8106; CPLR 8202; Cy Farms v. New York State Elec. & Gas Corp., 288 A.D.2d 946 [4th Dept 2001].) Where, as here, no party has objected to conduct that requires renewal, motion costs would generally be sufficient, although, in an appropriate case, a party could seek more to compensate for its actual legal fees and costs ( seeCPLR 5015 [a]; Part 130, Rules of the Chief Administrator of the Courts.)
Under the circumstances, the Court must grant defendant Polk's motion, and dismiss the Verified Complaint as to him. Since, however, the submissions would have been sufficient to raise triable issues had they been in admissible form, and since the Court is reluctant to penalize a client for the deficiencies of counsel, and since Defendant's reply does not object to the submissions on evidentiary grounds, Plaintiff will be given an opportunity to renew her opposition, but on condition.
Defendant Daryl M. Polk's motion is granted, the Verified Complaint as to him is dismissed, and he may enter judgment accordingly. This order is stayed for sixty (60) days, during which time Plaintiff may renew accordance with this opinion upon payment of $100 each, representing costs on this motion, to counsel for defendant Polk and counsel for the co-defendants ( seeCPLR 8106; CPLR 8202; Babikian v. Nikki Midtown, LLC, 60 AD3d at 472.) If renewal is made as provided, the order is further stayed until determination of the renewal motion.