But My Expert’s Affidavit Was Flawless, Wasn’t it?

June 12, 2014 | Scott P. Eisenberg | Insurance Coverage

Let me present two hypothetical fact patterns.  First, the snowbird-plaintiff was involved in an automobile accident while visiting New York, which resulted in New York litigation.  She spends the lion’s share of her year in Florida, and at the request of her attorney, defense counsel agrees to plaintiff’s IME being conducted in Florida.  However, and much to the chagrin of plaintiff’s attorney, the IME doctor issues the most “defense-friendly” report either attorney has ever seen.  It is chock full of findings of perfect ranges of motion compared to “generally accepted normal values” and littered with language opining that plaintiff is completely free and able to live a normal, active life.  Defendant moves for summary judgment thinking that victory is just a foregone conclusion given the strength of the IME doctor’s report and supporting Affidavit.  Plaintiff’s counsel knows it too.  Amazingly, when a decision is issued, defendant’s motion was denied.  Defense counsel scratches his head and wonders, “what happened?”

Second is a negligent security case involving an alleged assault at the local mall.  Based upon a referral from a trusted colleague, plaintiff’s counsel retains a security expert based out of New Jersey to provide an expert report and supporting Affidavit attesting to the sub-standard and negligent practices of the defendant security company compared to generally accepted standards.  The expert’s report and Affidavit form the basis for plaintiff’s summary judgment motion.  A “slam dunk” says plaintiff’s counsel.  However, the Court denies plaintiff’s motion.  Setting the attorneys’ indoor record for understatement, plaintiff’s counsel asks if it was something he did wrong.

Both moving attorneys fell victim to the same pitfall; to wit, failing to comply with the stringent but seldom discussed requirements of New York Civil Practice Law and Rules (“CPLR”) §2309(c).  §2309(c) states, in relevant part, the following:

Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

Stated more simply, an Affidavit signed and sworn to outside of New York must be accompanied by a certificate of conformity; otherwise the Affidavit will be deemed a nullity.  It is unsurprising that this particular issue has not received much treatment by the Appellate Courts being such a discrete and seldom implicated rule.

However, in 2008, this issue was addressed in an appeal before the Appellate Division, Second Department entitled PRA III, LLC v. Gonzalez.[1]  In PRA III, LLC, a suit involving an alleged credit card debt, the trial court granted plaintiff’s motion for summary judgment on the complaint.[2]  Specifically, the trial court found that plaintiff established its entitlement to summary judgment having submitted, among other items, three Affidavits attesting to the accuracy and authenticity of the motion’s exhibits.[3]  On appeal, the Appellate Division, Second Department reversed the trial court and held that plaintiff’s submissions were deficient as a matter of law.[4]  Specifically, the Court noted that:

[t]he affidavits provided by the plaintiff were both signed and notarized outside of the State of New York, and were not accompanied by the required certificates of conformity.[5]

Accordingly, the Court reversed the judgment and denied plaintiff’s motion for summary judgment on the complaint.

More recently and at the trial court level, Justice Arthur G. Pitts of Supreme Court, Suffolk County was faced with a similar issue.  In the case of Rocco v. Parzuchowski et al.[6],a routine motor vehicle accident case, Justice Pitts was forced to consider an Affidavit from an out-of-state physician similar to those in the above-referenced actions.  Specifically, defendant moved for summary judgment on the ground that plaintiff did not sustain a “serious injury” as defined by New York Insurance Law §5102(d).  Plaintiff, a snowbird like the one in our first hypothetical, was sent by her attorney for an IME in Florida.  Plaintiff’s intention was to submit the highly favorable report and accompanying Affidavit in opposition to the summary judgment motion, as it contained excellent language documenting plaintiff’s diminished ranges of motion and unlikelihood of full recovery.  However, and notwithstanding the strength of the supporting documents, Justice Pitts granted defendant’s motion and specifically addressed plaintiff’s supporting documentation:

The Court notes that the affidavit of Dr. Lotman is not in admissible form and was not considered in this determination, as it was signed and notarized in the state of Florida, but was not accompanied by the required certificate of conformity with the laws of the state of Florida.[7]

The Court in Rocco granted defendant’s motion and dismissed plaintiff’s complaint in its entirety, finding that plaintiff did not rebut defendant’s prima facie showing of entitlement to judgment as a matter of law with any admissible evidence.[8]

The lesson is simple, yet a crucially important one.  If you plan to utilize an expert report and supporting Affidavit from an out-of-state expert, ensure that it is in full compliance with CPLR §2309(c).  It is easier to take the time to ensure the “ts are crossed and i’s are dotted” before filing your motion than it is to explain to your client that you lost a motion and potentially set him up for unnecessary exposure based upon your own oversight.  This is how future clients are lost, a result which can be easily avoided.

[1] 54 A.D.3d 917, 864 N.Y.S.2d 140 (2d Dep’t 2008).

[2] 54 A.D.3d at 917, 864.N.Y.S.2d at 140-41.

[3] Id. at 918, 141.

[4] Id.

[5] Id. (emphasis added).

[6] Docket No. 11-01492MV (Sup. Ct. Suffolk County May 7, 2012).

[7] Id.

[8] Id.

Reprinted with permission from the June 12, 2014 edition of the New York Law Journal© 2014 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. 

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