Improper use of an affirmation cost Plaintiff its case

Radiology Today, P.C. v Mercury Ins. Co., 2012 NY Slip Op 50148(U)(App. Term 2d Dept. 2012)

“In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).”

I am pretty sure this was my appeal.