The failure to place evidence in proper form cannot be cured in a “supplemental opposition”

“The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin’s lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin’s cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The “Final Narrative” medical report of Dr. Jerome L. Greenberg, McMullin’s chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg’s affidavit, along with the “Final Narrative” report, in a surreply entitled, “Supplemental Affirmation in Opposition.” This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804).”

Renewal under certain circumstances may be granted to correct an improper affirmation

What happens if you draft an affirmation that is missing the magical “2106” language and the defect is properly objected to?  You lose.

Can you move to renew?  As we learn in Arkin v Resnick 8 2009 NY Slip Op 08980 (2d Dept. 2009), the answer is a qualified “yes”.

“The motion papers included a document by their medical expert, Dr. Alan Mensch, that was labeled as an “affirmation,” but was prefaced with a statement that he had been “duly sworn.” However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury.  By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon. Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form (see CPLR 2201, 2221[e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575).”

I am not sure we would have the same result if a chiropractor improperly affirmed a document and, following an adverse result, the “losing” attorney sought leave to renew in order to place the document in affidavit form.  This would not be inadvertent.  Rather, it would be considered a strategical gaff, which would not lend itself to relief through a motion to renew.

2106 again…

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the “AB v. Liberty” line of cases and the “old” Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

And now…
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U)(App. Term 2d Dept. 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_50810.htm

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant’s motion argued that: (Issue #1) a business record predicate was not set forth in Defendant’s moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant’s papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed the law know that the Appellate Division, Second Department, has ruled on this issue, albeit the last time in 2006 and the first time 2004.

Issue #2 was quickly disposed of since the affidavit that was presented has previously been held to adequately describe the mailing procedure.

Issue #3 is the reason this case went up the appellate ladder. Plaintiff, in her opposition papers, presented an affirmation of Dr. Zakharov. Upon a search of the Office of Professional Responsibility (OPR) website, it was learned that Dr. Zakharov was the President of this corporation. CPLR 2106 expressly disallows a party to “affirm” to the truth of matters set forth in the litigation, and at least three cases previously held that a member of a business organization who is a party to the litigation may not use the CPLR 2106 affirmation process.

A proper objection along with the printout of the OPR site were set forth in Defendant’s reply papers. Incidentally, some have argued (and there was merit to this argument) that the OPR record needed to be certified. CPLR 4518(c). I think we can all agree that after Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. 2009 NY Slip Op 00351 (2d Dept 2009), this objection is palpably without merit.

Plaintiff’s papers were properly excluded. Having failed to raise a triable issue of fact, summary judgment was awarded to Defendant.

"Kids, dont try this at home"

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

“Kids, dont try this at home”

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…