Court:Supreme Court, Appellate Division, Second Department, New York
Case: Vejselovski v. Mcerlean
Date: Sept. 20, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens injury attorney)
Comment: Plaintiff/accident victim once again loses a No-Fault "serious injury" summary judgment. In this case, the plaintiff’s lawyers made a dumb mistake, possibly even committing legal malpractice. They opposed the motion with an "affirmation" from a chiropractor. An affirmation is where a person swears to the truth of a written document. It differs from an "affidavit" only slightly. The truth of an affidavit is sworn to before a notary public.
The average citizen can only submit a sworn document to court as an affidavit. There are specific instances where an affirmation may be used. CPLR 2106, cited in this appeals court decision, says that when "not a party" to the lawsuit, an affirmation can be given by an attorney, physician, osteopath or dentist. And that is the entire list. Chiropractors can’t ever give an affirmation, and this is well-established and should be a well-known rule.
So if this accident victim had a "serious injury," his attorneys needed to take the extra step of having the chiropractor give an affidavit sworn to before a notary public, and not an affirmation.So the accident victim loses here and maybe shouldn't have.
ACCIDENT VICTIM'S DEFAULT FORGIVEN, SHE DEFEATS DEFENSE MOTION SEEKING SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD (Posted by Queens injury attorney Gary E. Rosenberg on Oct 5, 2011)
DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Queens injury attorney Gary Rosenberg on Jul 30, 2010)
NO SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Queens injury attorney Gary E. Rosenberg on Oct 7, 2011)
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated March 15, 2011, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Atli Vejselovski did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The defendant met his prima facie burden of showing that the plaintiff Atli Vejselovski (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiffs alleged that certain regions of the injured plaintiff's spine, as well as the injured plaintiff's left shoulder, sustained certain injuries as a result of the subject accident, and the defendant provided competent medical evidence establishing, prima facie, that those alleged injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).
In opposition, the plaintiffs failed to raise a triable issue of fact (see Casas v. Montero, 48 A.D.3d 728, 728–729, 853 N.Y.S.2d 358; Guzman v. Bowen, 46 A.D.3d 617, 847 N.Y.S.2d 630; Rameau v. King, 245 A.D.2d 557, 666 N.Y.S.2d 513). The affirmed report the plaintiffs submitted from the insured plaintiff's treating chiropractor was without probative value, since a chiropractor may not affirm the contents of a report pursuant to CPLR 2106 (see Casas v. Montero, 48 A.D.3d at 728–729, 853 N.Y.S.2d 358; Guzman v. Bowen, 46 A.D.3d 617, 847 N.Y.S.2d 630; Kunz v. Gleeson, 9 A.D.3d 480, 781 N.Y.S.2d 50). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.