Key Takeaway
Court grants plaintiff's renewal motion to correct defective medical affirmations, allowing second chance to submit proper documentation in personal injury case.
Understanding Renewal Motions: A Second Chance for Proper Documentation
New York courts occasionally grant litigants a second opportunity to correct procedural defects in their submissions. This case demonstrates how renewal motions under CPLR 2221 can provide relief when substantively strong evidence is presented in the wrong format. The plaintiff’s medical evidence was substantively sufficient to prove serious injury but was inadmissible due to a licensing technicality.
Jason Tenenbaum’s Analysis:
Ferrara v De Ming Song, 2010 NY Slip Op 51472(U)(App. Term 2d Dept. 2010)
“he affirmed reports of plaintiff’s medical provider in Florida, submitted in opposition to defendant’s motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.”
…
Contrary to defendant’s contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff’s motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 ; Arkin v Resnick, 68 AD3d 692 ; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 ; Smith v Allstate Ins. Co., 38 AD3d 522 ; Joseph v Joseph, 24 Misc 3d 141, 2009 NY Slip Op 51719 ; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 ; Acosta v Rubin, 2 AD3d 657 ; Ramos v Dekhtyar, 301 AD2d 428 ).
Key Takeaway
Courts may exercise discretion in granting renewal motions when substantively adequate evidence is submitted in procedurally defective form. Here, the court recognized that while the Florida doctor’s affirmation was inadmissible under CPLR 2106, allowing the plaintiff to resubmit proper documentation served the interests of justice.
Related Articles
- Issues involving the granting of leave to renew when an improper affirmation instead of an affidavit is presented
- Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation: A Comprehensive Guide to CPLR 2106 Requirements
- Renewal is allowed to correct 2106 hiccups
- CPLR 2221(a) motion appropriate to deal with motion to vacate sua sponte order
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2010 post, CPLR provisions governing renewal motions and medical affirmations may have been subject to amendments or judicial interpretation changes. Additionally, requirements for out-of-state medical provider documentation under CPLR 2106 and related procedural standards may have evolved. Practitioners should verify current CPLR 2221 and 2106 provisions and recent case law regarding renewal motion standards and medical evidence admissibility requirements.
