CONNOR v. Daniel J. Lyons, Defendant. (2007)

Order (Nelida Malave, J.), entered March 22, 2005, affirmed, with $10 costs, with leave to defendants-appellants to renew their motion for summary judgment upon proper papers.

We agree that defendants-appellants failed to establish, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  The unsworn and unaffirmed report submitted by defendants' examining neurologist was not in admissible form, an unexplained defect which requires its exclusion from consideration (see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991] ).   Also lacking in probative value was the report submitted by defendants' examining orthopedist, a report affirmed “to be true with a reasonable degree of medical certainty.”   The orthopedist's report plainly failed to comply with CPLR 2106, which requires a physician's statement to be “affirmed ․ to be true under the penalties of perjury” (see Offman v. Singh, 27 A.D.3d 284, 813 N.Y.S.2d 56 [2006] ).

Since the defendants' medical reports were not properly subscribed, Civil Court appropriately refused to consider them with respect to defendants' threshold burden, and this even though no specific objection to the form of the reports was raised in plaintiff's opposition papers.   While a party generally may not challenge the form of an adversary's motion submission for the first time on appeal (see e.g. Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 [2003] ), this rule should not be extended so as to preclude a motion court from rejecting on its own initiative a submission palpably deficient in form (see Daus v. Cassavaugh, 17 A.D.3d 837, 838, 793 N.Y.S.2d 589 [2005];  but cf. Scudera v. Mahbubur, 299 A.D.2d 535, 750 N.Y.S.2d 644 [2002] ).   A review of the Appellate Division record and briefs in Daus, a serious injury case, indicates that Supreme Court, in determining whether the defendants therein had met their initial burden of demonstrating entitlement to summary judgment, refused to consider a chiropractor's affirmation submitted by defendants because it was not in admissible form, despite the plaintiff's failure to raise the issue in her opposition papers.   The appellate panel unanimously upheld the motion court's sua sponte action as proper, and, indeed, the point was conceded by defense counsel upon oral argument of that appeal.   Unlike the defendants in the case now before us, the defendants in Daus submitted other proof found sufficient to satisfy their threshold burden on the serious injury issue, thus requiring Supreme Court (and the Appellate Division) to evaluate the strength of the plaintiff's opposing submission, which included the same chiropractor's affirmation.   The passage from the Appellate Division decision in Daus quoted by our dissenting colleague related solely to that aspect of the case and cannot be read to diminish the appellate panel's statement earlier in the decision that “Supreme Court properly refused to consider [the chiropractor's affirmation] with respect to defendants' threshold burden” (id.).

Inasmuch as the (properly) excluded medical reports comprised the primary evidentiary support for defendants' summary judgment motion in the case at bar, and in the absence of any other objective medical evidence on the serious injury issue (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), defendants' motion was properly denied at this juncture, irrespective of the sufficiency of plaintiff's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).   In the circumstances present, we believe defendants should be afforded an opportunity to renew their application upon proper papers, if they be so advised.

I respectfully dissent.

Plaintiff's failure to object to the form of defendants' medical experts' report and affirmation before the Motion Court constitutes a waiver of any objection (see Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 [1st Dept. 2003] ).   The Motion Court should not have sua sponte decided the motion on an issue not raised by the plaintiff.

The majority's reliance on Daus v. Cassavaugh, 17 A.D.3d 837, 793 N.Y.S.2d 589 [3d Dept. 2005] is misplaced.   The plaintiff and the moving defendant in that case both submitted the same chiropractor reports of Sydney Hochman on the summary judgment motion.   The Motion Court sua sponte rejected the chiropractor reports but the Appellate Division stated, “Assuming that Hochman's affirmations could be considered in opposition to the motion since defendants did not object to their admissibility before Supreme Court (see Akamnonu v. Rodriguez, 12 A.D.3d 187, 187, 784 N.Y.S.2d 516 [2004];  Shinn v. Catanzaro, supra at 198, 767 N.Y.S.2d 88) review of those affirmations fails to reveal factual issues as to a significant limitation of use” (Daus, 17 A.D.3d at 839, 793 N.Y.S.2d 589).   The Appellate Division considered the affirmations which were not in compliance with CPLR 2106 ¹ citing Shinn v. Catanzaro, supra.   The defendant tactically conceded the deficiency in Hochman's affirmations because it had other medical proof knowing that the plaintiff relied solely on Hochman's affirmations.

Defendants satisfied their burden of proof with medical evidence that, notwithstanding positive MRI reports, plaintiff had full range of motion and no disability resulting from the January 2001 motor vehicle accident (see Style v. Joseph, 32 A.D.3d 212, 820 N.Y.S.2d 26 [1st Dept. 2006];  Quezada v. Luque, 27 A.D.3d 205, 810 N.Y.S.2d 463 [1st Dept. 2006];  Thompson v. Abbasi, 15 A.D.3d 95, 788 N.Y.S.2d 48 [1st Dept. 2005] ).

Plaintiff failed to come forward with objective contemporaneous evidence that she sustained a serious injury (Insurance Law § 5102[d];  see Toulson v. Pae, 13 A.D.3d 317, 319, 788 N.Y.S.2d 334 [1st Dept. 2004] ).   The opinion as to permanence and significance of plaintiff's expert, who first examined plaintiff nearly four years after the accident, is conclusory, speculative and appears tailored to meet the statutory definition (see Arjona v. Calcano, 7 A.D.3d 279, 776 N.Y.S.2d 49 [1st Dept. 2004] ).   Notably absent from the record is any evidence of testing and treatment in the near aftermath (six months) of the accident.   Nor do plaintiff's unsubstantiated assertions of disability suffice to sustain the claim that she was unable to perform substantially all of the material acts which constituted her customary daily activities for 90 of the initial 180 days following the accident (see Quezada v. Luque, supra;  Copeland v. Kasalica, 6 A.D.3d 253, 775 N.Y.S.2d 276 [1st Dept. 2004] ).

The Order should be reversed and judgment granted dismissing the complaint.

This constitutes the decision and order of the court.

FOOTNOTES

1.   While the form of Hochman's affirmation was proper, a chiropractor is not within the class of professionals whose affirmation can be used in lieu of an affidavit.

PER CURIAM.