Experts have to know what they are talking about and CPLR 2106

Galluccio v Grossman, 2018 NY Slip Op 03664 [2d Dept. 2018]

In opposition, the affirmation of the plaintiffs' expert failed to raise a triable issue of fact. "While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable" (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [internal quotation marks and citations omitted]). "Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered" (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Here, the plaintiffs' expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. The affirmation, therefore, [*3]lacked probative value, and failed to raise a triable issue of fact (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831). Accordingly, the Supreme Court should have granted the motion of Friedman and Island Medical for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.


Although the plaintiffs initially opposed the motion with physician affirmations that did not comply with CPLR 2016, the court providently disregarded the defect after the plaintiffs replaced the affirmations with affidavits (see CPLR 2001). However, the court should have granted that branch of the motion which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against those defendants, since, as elucidated in the bill of particulars, the claim does not involve an affirmative violation of the plaintiff's physical integrity as is required to state a cause of action for lack of informed consent (see Martin v Hudson Val. Assoc., 13 AD3d 419, 420).




Rojas v Palese, 2012 NY Slip Op 02790 (1st Dept., 2012)

The jury's finding that defendant Palese deviated from the standard of care in causing plaintiff's aorta to tear during a laparoscopic donor nephrectomy was based on legally sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Defendants' objections to the qualifications of plaintiff's vascular surgery expert go to the weight and not the admissibility of the expert's testimony (Williams v Halpern, 25 AD3d 467, 468 [2006]); the weight to be accorded to conflicting expert testimony is a matter for the jury (see Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff's expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101[d][1][i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). The videotape and photographs proffered by defendants were properly excluded; the limited probative value of a demonstration of Palese's performance of the same procedure on another patient was outweighed by the prejudicial effect of showing the jury the complexity of the surgery and the level of skill exhibited by Palese (see Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 205-206 [1989]).

Cruz v Rivera, 2012 NY Slip Op 02811 (1st Dept., 2012)

The unaffirmed MRI reports, which were referred to and not disputed by defendant's medical expert, and were relied upon by plaintiff's physician, were properly considered in opposition to the motion since they were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]).

Underbruckner Realty Corp. v Tax Commn. of the City of N.Y., 2012 NY Slip Op 02767 (1st Dept., 2012)

Petitioners rebutted the presumption of validity as to the existing tax assessments by presenting "substantial evidence" demonstrating "the existence of a valid and credible dispute regarding valuation" (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-188 [1998]). The trial court's determination that petitioners' property has been overvalued is supported by a preponderance of the evidence (see id. at 188). Looking to the Medicaid reimbursement rate as a means to assess the value of a nursing home has been judicially recognized (see e.g. Tarrytown Hall Care Ctr. v Board of Assessors, Sup Ct, Westchester County, Mar. 4, 2004, Rosato, J., Index No. 14267/98).

Respondents' expert's assertion that the methodology he employed is the only way to assess the value of a nursing home's real estate runs afoul of the principle that "there is no fixed method for determining that value" (see Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Courts are "under no compunction to . . . confine[] assessors to any one course" (see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 541 [1978]). Furthermore, both the experts used the income capitalization approach, which calls for "the exercise of judgment by the appraiser," because the approach yields, "at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue" (id., 45 NY2d at 542). In addition, whether the apartment buildings relied upon by petitioners were valid "comparables" was a question of fact to be resolved by the trial court (see Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 80 AD3d 118, 144 [2010]).

It is true that respondents presented evidence upon which the court could reasonably have [*2]found that the Medicaid reimbursement rate (even as amended upward by non-Medicaid patient data) was not an accurate measure of market rent. However, in reducing the existing assessments in half, the court implicitly found that the market value numbers proffered by petitioners were below market and partially credited respondents' methodology, finding, however, that it produced above-market values for the respective tax years. Contrary to respondents' contention, the court did not improperly "split the difference." The court's valuations were "within the range of the trial evidence" (see Matter of Kips Bays Towers Condominium v Commissioner of Fin., 66 AD3d 506, 506-507 [2009], lv denied 14 NY3d 708 [2010]).

We also reject respondents' contention that the court failed to set forth "the essential facts found upon which the ultimate finding of facts [was] made" (RPTL 720[2]). While the court might have addressed the respective methodologies and calculations of the parties more specifically, it did state the essential fact: that both sides presented cogent arguments and that "the true valuation of the property is greater than that proposed by the Petitioner[s] and less than that proposed by the Respondents" (cf. Matter of Trinity Place Co. v Finance Adm'r of City of N.Y., 72 AD2d 274, 275 [1980], affd 51 NY2d 890 [1980]).

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept., 2012) (note the dissent)

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts' range-of-motion findings are minor and both doctors concluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming serious injury,' must offer some reasonable explanation for having done so" (id. at 574).

Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was "cut off" five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants' motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy" is speculative and finds no support in the record.

Barry v Arias, 2012 NY Slip Op 02606 (1st Dept., 2012)

Plaintiffs Danielle Barry and Cherlynn Reeves allege that they sustained serious injuries as a result of their car being rear-ended by defendants' livery cab in July 2008. Defendants made a prima facie showing that neither plaintiff sustained a permanent or significant injury by submitting the affirmed reports of a neurologist and orthopedist who, based upon examinations of plaintiffs in November 2009 and February 2010, found no neurological deficits and full ranges of motion in both plaintiffs' cervical and lumbar spines, and in Barry's right knee, and concluded that any alleged injuries had resolved. Further, the affirmed MRI reports of defendants' radiologist noted an absence of evidence of recent trauma or acute injuries to the spines (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d 449, 449 [2010], lv denied 15 NY3d 713 [2010]). The physicians' failure to review plaintiffs' medical records does not require denial of defendants' motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist's finding of absence of recent trauma was based on an independent review of the MRI films (see Canelo v Genolg Tr. Inc., 82 AD3d 584 [2011]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [2010]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

Neither plaintiff raised a triable issue of fact to defeat summary judgment, as none of their medical evidence was submitted in admissible form. Their radiologists' and physiatrist's reports were unaffirmed (see CPLR 2106; Lazu v Harlem Group, Inc., 89 AD3d 435 [2011]; Pinkhasov v Weaver, 57 AD3d 334 [2008]). Although their chiropractor affirmed his reports, reports of chiropractors must be subscribed before a notary or other authorized official (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]; see also CPLR 2106).

Jean-Louis v Gueye, 2012 NY Slip Op 02612 (1st Dept., 2012)

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spine showing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605 [2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation [*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez, 4 NY3d at 574; Mercado-Arif v Garcia, 74 AD3d 446 [2010]).

Martin v Kone, Inc., 2012 NY Slip Op 02564 (1st Dept., 2012)

In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual or constructive notice. There was no evidence that the prior incidents identified in the work tickets "were of a similar nature to the accident giving rise to this lawsuit" or "were caused by the same or similar contributing factors" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; see Levine v City of New York, 67 AD3d 510, 510-511 [2009]).

Plaintiff also failed to raise an issue of fact as to defendant's negligent maintenance since her expert's affidavit contained mere speculation, unsupported by any evidentiary foundation (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert failed to provide the results of his "examination" of the elevator and elevator room, or identify the basis for his conclusion that plaintiff's accident was caused by defendant's failure to maintain the elevator in accordance with industry standards.

However, defendant's witness testified that he did not know what type of detector edge was on the elevator or whether the detector edge had multiple beams in it. Thus, there was no [*2]evidence in the record that plaintiff had access to the mechanism that would cause the door to retract (see Gutierrez v Broad Fin. Ctr. LLC, 84 AD3d 648 [2011]; Ianotta v Tishman Speyer Props., Inc., (46 AD3d 297, 298 [2007]), Therefore, defendant is not entitled to summary judgment.

Callistro v Bebbington, 2012 NY Slip Op 02423 (1st Dept., 2012)

Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raises a triable issue as to causation, since each fails to address how the claimed departures could have caused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion that the normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxic injury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completely ruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to the nuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with late decelerations . . . enhance[] the likelihood that the fetus is undergoing significant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case, notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge's statement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty" required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr. Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury. Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated "possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr. Roseman concluded, since a follow-up neurosonogram performed one month later showed no evidence of hemorrhaging.

Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language" and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Duran v Kabir, 2012 NY Slip Op 02173 (1st Dept., 2012)

In opposition, plaintiff submitted the affirmed reports of her physicians, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and approximately two years later. Plaintiff also submitted the MRI reports of a radiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation of use" and "permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law § 5102[d]; see Fuentes v Sanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they are admissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and were incorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]). Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor, who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was no evidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).

Mutual Mistake

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Asset Mgt. & Capital Co., Inc. v Nugent, 2011 NY Slip Op 05438 (App. Div., 2nd 2011)

"Stipulations of settlement are favored by the courts and not lightly cast aside . . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, [mutual] mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (Hallock v State of New York, 64 NY2d 224, 230 [citations omitted]). "For a party to be entitled to reformation of a contract on the ground of mutual mistake, the mutual mistake must be material, i.e., it must involve a fundamental assumption of the contract" (True v True, 63 AD3d 1145, 1147). "A party need not establish that the parties entered into the contract because of the mutual mistake, only that the material mistake . . . vitally affects a fact or facts on the basis of which the parties contracted'" (True v True, 63 AD3d at 1147, quoting Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 214). Moreover, "proof of [mutual] mistake must be of the highest order,' [and] must show clearly and beyond doubt that there has been a [mutual] mistake' and . . . must show with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'" (Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d at 215, quoting 13 Williston, Contracts [3d ed], § 1548, at 125; see Amend v Hurley, 293 NY 587, 595). "Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally neither the parol evidence rule nor the Statute of Frauds applies to bar proof, in the form or parol or extrinsic evidence, of the claimed agreement" (Chimart Assoc. v Paul, 66 NY2d 570, 573).

Here, the plaintiffs established that the stipulation of settlement contains a mutual mistake. Specifically, the Condo Analysis Summary (hereinafter the summary) prepared by Michael T. Nugent, sued herein as Michael I. Nugent (hereinafter the defendant), which the parties agree  formed the basis of the stipulation of settlement, reflects that the defendant's expenditures above his one-half ownership interest in the subject premises totaled $83,925. Moreover, throughout this litigation—until he opposed the plaintiffs' motion to reform the stipulation—the defendant consistently asserted, in pertinent part, that he was entitled to "reimbursement of one half of the amounts he has advanced [$83,925] plus interest thereon." As such, the plaintiffs established that, in the stipulation, the parties intended for the defendant to receive, from the proceeds of sale of the subject premises, and before considering other adjustments, one half of $83,925, or $41,962.50.

However, both the stipulation and the summary are silent with respect to the fact that a $20,000 payment was made by the plaintiffs in February 2004 to pay down the mortgage principal on the subject real property. Since the stipulation properly characterized the $20,000 paid by the plaintiffs as a "reimbursement" to the defendant, and the parties intended first to credit the defendant for one half of the expenditures he incurred before crediting the plaintiffs for the $20,000 reimbursement, the Supreme Court properly determined that the amounts ultimately credited to the parties in the stipulation were the product of a mutual mistake, and properly granted the plaintiffs' motion to reform the stipulation so as to direct the defendant to pay to the plaintiffs the sum of $10,000, representing the plaintiffs' overpayment to the defendant.



3025 and 2106

CPLR R. 3025

CPLR R. 2106

Schwartz v Sayah, 2011 NY Slip Op 03227 (App. Div., 2nd 2011)

Leave to amend pleadings should be freely granted (see CPLR 3025[b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170) in the absence of prejudice or surprise resulting from the delay (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., 306 AD2d 435, 436). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Jenal v Brown, 80 AD3d 727; Morton v Brookhaven Mem. Hosp., 32 AD3d 381).

In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant (see generally Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; Boglia v Greenberg, 63 AD3d 973, 975; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758, 759), the Supreme Court properly denied the motion for leave to amend (see Jenal v Brown, 80 AD3d 727; Tarantini v Russo Realty Corp., 273 AD2d 458, 459; County of Suffolk v Caccavalla, 227 AD2d 511, 513). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper (see CPLR 2106), and that document should have been disregarded because it was not in admissible form (see Matter of Nazario v Ciafone, 65 AD3d 1240, 1241; Lessoff v 26 Ct St. Asso.s., LLC, 58 AD3d 610, 611; Finger v Saal, 56 AD3d 606, 607; Pisacreta v Minniti, 265 AD2d 540).

Disqualification, etc. 2106 too.

Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 2011 NY Slip Op 02639 (App. Div., 2nd 2011)

"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client" (Rowley v Waterfront Airways, 113 AD2d 926, 927; see Matter of Kelly, 23 NY2d 368, 375-376; Ogilvie v McDonald's Corp., 294 AD2d 550, 552). However, "[d]isqualification denies a party's right to representation by the attorney of its choice" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131), and may create "significant hardships" for that party (Solow v Grace & Co., 83 NY2d 303, 310; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443).

Accordingly, where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts "are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake" (Niesig v Team I, 76 NY2d 363, 369-370; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443). It is the Supreme Court's responsibility to balance the competing interests, and "[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" (Falk v Gallo, 73 AD3d 685, 685; see Cardinale v Golinello, 43 NY2d 288, 292; Matter of Erlanger [Erlanger], 20 NY2d 778, 779; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277). Under the circumstances present here, the Supreme Court did not improvidently exercise its discretion when it denied the plaintiff's motion to disqualify the defendant's attorney (see Campbell v McKeon, 75 AD3d 479, 480; Kushner v Herman, 215 AD2d 633, 633; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189; Lopez v Precision Papers, 99 AD2d 507, 508; cf. Morris v Morris, 306 AD2d 449, 452).

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 2011 NY Slip Op 02067 (App. Div., 1st 2011)

Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests (see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 75-76 [2002]; Martinez v Suozzi, 186 AD2d 378 [1992]).

While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner (see CPLR 2106), under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (see Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408 [1989], lv denied 75 NY2d 702 [1989]; see CPLR 2001).


CPLR R. 2106: can’t be a party

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Morrison Cohen LLP v Fink, 2011 NY Slip Op 00779 (App. Div., 1st 2011)

To successfully oppose a motion for leave to enter a default judgment, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense. As a party to the action, although an attorney by profession, defendant was required to submit an affidavit in opposition to plaintiff's motion for a default judgment. His submission of an affirmation instead of an affidavit was improper, "and its contents [were correctly] disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff's motion" (Pisacreta v Minniti, 265 AD2d 540 [1999]). Defendant's papers were deficient for the additional reason that the affidavit of the postal service worker on which he relied to demonstrate the inadequacy of "nail and mail" service pursuant to CPLR 308(4) was notarized by defendant himself, a party to the action.

Defendant is not entitled to relief, in the alternative, under CPLR 317 since he has failed to demonstrate that he "did not personally receive notice of the summons in time to defend" (id.; see Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517 [2005]).

The bold is mine.

CPLR R. 2106 Affirming a document is not enough

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co., 2010 NY Slip Op 51543(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

By notice of petition and petition dated May 14, 2008, State Farm Mutual Automobile Insurance Company (State Farm) commenced this proceeding to confirm a handwritten arbitration award dated June 19, 2007. Hereford Insurance Company (Hereford) opposed such relief, arguing, inter alia, that State Farm was, in effect, seeking either to vacate a final typewritten arbitration award dated July 7, 2007, thereby reinstating the handwritten award dated June 19, 2007, or to modify the July 7, 2007 award by conforming it to the June 19, 2007 award, and, as such, the proceeding was untimely as exceeding the 90-day time period within which an award may be vacated or modified (see CPLR 7511 [a]). The Civil Court denied the petition and dismissed the proceeding without prejudice to the commencement of a new proceeding, finding that the handwritten award was not in proper form because of a problem with the arbitrator's affirmation (see CPLR 7509). On appeal, State Farm contends that the petition to confirm the handwritten award should have been granted, and Hereford contends, inter alia, that the proceeding should have been dismissed with prejudice as it was not timely commenced.

CPLR 7510 permits a party to confirm an award; however, an award by definition must be in writing, signed and affirmed (CPLR 7507). For a document to be properly affirmed, there must be compliance with either CPLR 2309 or CPLR 2106. Here, the document submitted with the petition does not comply with the requisites of either statute. The handwritten award signed by the arbitrator, dated June 19, 2007, simply states: "This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. I affirm that I have read [*2]and understand the following."

This is not in an authorized form; the mere statement that a person affirms a document is insufficient (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]). State Farm's assertion that arbitrators have been using this vague language for years is irrelevant. Consequently, the Civil Court acted within its discretion in allowing petitioner a further opportunity to submit an award in proper form for confirmation. Accordingly, the order is affirmed.

The bold is mine.

Can’t meet prima facie burden by adding new evidence in reply. And CPLR R. 2106

Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 2010 NY Slip Op 01930 (App. Div., 2nd, 2010)

Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).

And you can't submit an affirmation that does not actually affirm. 

Niazov v Corlean Cab Corp., 2010 NY Slip Op 01941 (App. Div., 2nd, 2010)

The defendants failed to meet their prima facie burden of showing that the 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).

In both of these cases the motions were denied without needing to look at the opposition papers.  Bad papers get motions denied, even if the opposition papers are horrible.  Even if there are no opposition papers.  The movant still has it's burden.

Finally, parties can't affirm, no matter how hard they swear under penalties of perjury.

Experts & CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Todman v Yoshida, 2009 NY Slip Op 05257 (App. Div., 1st, 2009)

The court correctly precluded the testimony of plaintiff's expert
toxicologist. The foundation for the expert's opinion that plaintiff's
alleged health condition was caused by toxic chemicals contained in the
wood-stripping agents used by defendant Yoshida in an apartment in the
building owned by Brown and Cook-Brown lacked the "specific causation"
i.e., that plaintiff was exposed to levels of the toxins
sufficient to cause the condition (see Parker v Mobil Oil Corp., 7 NY3d 434,
448 [2006]). While "not required to pinpoint exposure with complete
precision," the expert failed even to offer a "scientific expression"
of plaintiff's exposure
(id. at 449).

He neither provided a measurement of plaintiff's exposure nor
employed any of the available methods for reasonably estimating it,
such as mathematical modeling or comparing plaintiff's exposure level
to those of study subjects whose exposure levels were precisely
determined. Absent was any statement that the chemicals in question are
capable of causing injury at even the lowest exposure level.

In his affidavit submitted in opposition to defendants' motion,
the expert also failed to provide any measurement or estimate of
plaintiff's exposure to the subject toxins. While he opined, based on
the manner in which Yoshida used the
wood-stripping agents, that Yoshida's exposure to the toxins contained in those agents exceeded the limits set by OSHA,
"standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (id.
at 450). Furthermore, he failed to state any relationship between
Yoshida's exposure and that of plaintiff, who occupied a different

Ortiz v Ash Leasing, Inc., 2009 NY Slip Op 05168 (App. Div., 1st, 2009)

Ortiz's doctor's conclusory statement in July 2008 that the knee
operation was related to the August 3, 2006 accident is contradicted by
August 30, 2006 X-rays and a September 18, 2006 MRI showing
degenerative changes (see Thompson, 15 AD3d at 99), and the
doctor's "failure even to mention, let alone explain, why he ruled out
degenerative changes as the cause of plaintiff's knee . . . injuries,
rendered his opinion that they were caused by the accident speculative"
(Valentin v Pomilla, 59 AD3d 184, 186 [2009]; see also Perez v Hilarion, 36 AD3d 536, 537 [2007]).

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

Plaintiff's argument that the court abused its discretion by precluding
their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York,
58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject,
the court obviously was aware of the nature of the objection and, more
importantly, it recognized that the issue would be subject to appellate
(Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59 [2005]).

While the "qualification of an expert witness is within the court's
sound discretion, and its determination will not be disturbed in the
absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys.,
52 AD2d 550 [1976]). Licensed professionals acting as experts have been
found qualified to give their opinions regarding future or estimated
costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with
estimating costs.
The computer database utilized by plaintiff's expert
to prepare pre-bid cost estimates was based on the same methodology
employed in connection with the completed remediation work —
specifications and bids of hundreds of prior projects on which the
expert had worked. Furthermore, "any alleged lack of knowledge in a
particular area of expertise goes to the weight and not the
admissibility of the testimony," and could have been cured with a
limiting instruction to the jury
(see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off
against the $2,059,692.09 jury verdict the $1,960,000 received from the
settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed
9 NY3d 839 [2007]). Based on the explicit language of the second
amended complaint, the verdict sheet and the settling agreements, there
is no basis for concluding that the jury allocated damages to these
defendants based on the same claims or injuries by which plaintiff had
entered into its agreements with the settling codefendants. Plaintiff's
Amended CPLR 3101(d) Expert Disclosure clearly indicated that this
expert's testimony would address construction defects caused by K &
J and the "costs to remedy" those defects.

Maffei v Santiago, 2009 NY Slip Op 05298 (App. Div., 2nd, 2009)

The medical reports of Dr. James McWilliam were without any
probative value in opposing the defendants' motion because they were
unaffirmed (see Grasso v Angerami, 79 NY2d 813; 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; [*2]Pagano v Kingsbury, 182 AD2d 268).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961; Luizzi-Schwenk v Singh, 58 AD3d 811; Gochnour v Quaremba, 58 AD3d 680).

The bold is mine.

CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

statement of an attorney admitted to practice in the courts of the
state, or of a physician, osteopath or dentist, authorized by law to
practice in the state, who is not a party to an action, when subscribed
and affirmed by him to be true under the penalties of perjury, may be
served or filed in the action in lieu of and with the same force and
effect as an affidavit.

St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U) (App. Term, 2nd, 2009)

opposition, plaintiff submitted an affirmation executed by its
principal, Dr. Zakharov. Defendant objected to said affirmation in its
reply papers, citing CPLR 2106. The submission of Dr. Zakharov's
affirmation was improper because he is a principal of plaintiff
professional corporation, which is a party to the action (see CPLR 2106
; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A] 2006 NY Slip Op 51055[U] [App Term 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti,
265 AD2d 540 [1999]). Since the Civil Court should not have considered
any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), 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]). Plaintiff's remaining contentions lack merit.

The bold is mine.

The Appellate Division, Second Department decided a similar issue a few month's earlier in Lessoff v 26 Ct. St. Assoc. LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009).  In that case, the plaintiff was an attorney.  The Court found that CPLR R. 2106 prohibited him from using an affirmation.