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COURT DISMISSES COMPLAINT ON EVIDENTIARY GROUNDS
By: MICHAEL A. CALLINAN, ESQ.

FOR THE DEFENSE

COURT DISMISSES COMPLAINT ON EVIDENTIARY GROUNDS

BY: MICHAEL A. CALLINAN, ESQ.

In an action to recover for personal injuries allegedly sustained in an automobile accident in 2002, the Supreme Court, Nassau County, granted defendant’s motion for summary judgment as a matter of law on the issue of serious injury since the plaintiff did not submit any evidence in admissible form in opposition to defendant’s motion. The trial court in Blackbeer v. Gonzalez, Supreme Court, Nassau County, December 8, 2005, Joseph, J., Index Number 771/04, dismissed plaintiff’s complaint based upon the rationale that the medical reports submitted in opposition to defendant’s motion were neither sworn to nor affirmed to be true under the penalties of perjury.

Relying on the holding of Sandoro v. Andzel, 307 A.D.2d 706 (N.Y. App. Div. 4th Dept. 2003) the trial court concluded that plaintiff’s opposition papers were insufficient to overcome defendant’s prima facie entitlement to summary judgment as a matter of law. All medical reports submitted in opposition to defendant’s motion for summary judgment were held to lack evidentiary value since they were not sworn to nor affirmed to be true under the penalties of perjury by plaintiff’s treating physicians

Further, in relying on the holding of Farozes v. Kamran, 802 N.Y.S.2d 706 (N.Y. App. Div. 2d. Dept. 2005) the trial court concluded that plaintiff’s “gap in treatment” between September 25, 2002, when the plaintiff ceased receiving medical treatment, and October 22, 2005, when the plaintiff was examined in opposition to defendant’s motion for summary judgment, was not adequately explained by the plaintiff’s treating physician.

In addition to the lack of evidentiary support and unexplainable gap in treatment, the trial court concluded that certain inconsistencies in plaintiff’s medical records did not correlate to the treatment and testing allegedly provided to the plaintiff. While the dismissal of plaintiff’s complaint on evidentiary grounds appears harsh at first glance, it is in conjunction with the recent decision issued by the Court of Appeals in Pommells v. Perez, et al., 4 N.Y.3d 566 (N.Y. 2005).

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