CPLR R. 2106 If plaintiff is an attorney, an affidavit must be used, not affirmation

It was improper for the plaintiff to submit his own affirmation rather than an affidavit, since he was a party to the action (see CPLR 2106; Muniz v Katlowitz, 49 AD3d 511, 513; DeLeonardis v Brown, 15 AD3d 525, 526; Matter of Sassower v Greenspan, Kanarek, Jaffe & Funk,
121 AD2d 549). Furthermore, the purported date of the accident
contained in the physician's report constituted inadmissible hearsay,
since the source of that information was unknown and may have been part
of the history relayed by the plaintiff (see Albrecht v Area Bus Corp., 249 AD2d 253, 255; Ginsberg v North Shore Hosp., 213 AD2d 592; Echeverria v City of New York,
166 AD2d 409, 410). Moreover, the affidavit of the office manager of
the plaintiff's law firm was improperly submitted in surreply (see CPLR 2214; Boockvor v Fischer, 56 AD3d 405; Flores v Stankiewicz, 35 AD3d 804, 805; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416,
417). In any event, that affidavit was of no probative value. Since the
plaintiff failed to produce any evidentiary facts with respect to the
date of the accident, that branch of the motion which was pursuant to
CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against
the appellant as time-barred should have been granted.