Opinion
2007-1690 Q C.
Decided February 13, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 26, 2007. The order, insofar as appealed from, denied defendant's motion for summary judgment.
Order, insofar as appealed from, reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.
PRESENT: WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground of lack of medical necessity. Plaintiff opposed the motion and cross-moved for summary judgment. The court denied defendant's motion and plaintiff's cross motion, holding, insofar as is relevant to this appeal, that defendant did not make a prima facie showing of its entitlement to judgment as a matter of law because defendant relied upon a chiropractor's report which was not in admissible form since it was "affirmed" and there was no indication that the chiropractor swore under penalty of perjury when the report was "notarized" six days later. This appeal by defendant ensued.
Although chiropractors may not affirm pursuant to CPLR 2106 ( see Slavenburg Corporation v Opus Apparel, Inc., 53 NY2d 799, 801; Kunz v Gleeson , 9 AD3d 480 , 481; Shinn v Catanzaro , 1 AD3d 195 , 197), this defect was waived since plaintiff failed to object in the court below ( see Akamnonu v Rodriguez , 12 AD3d 187 ; see also Shinn, 1 AD3d 195; Scudera v Mahbubur, 299 AD2d 535; cf. O'Connor v Singh , 16 Misc 3d 30 , 31 [App Term, 1st Dept 2007]). As a result, the IME report proffered by defendant established defendant's prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff's assignor were not medically necessary ( see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. , 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co. , 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d 11th Jud Dists 2007]). In opposition, plaintiff proffered an unsworn medical report which was "dictated but not read." Thus, it was of no probative value ( see Dowling v Mosey , 32 AD3d 1190 ; Macri v St. Agnes Cemetery, 44 Misc 2d 702). Inasmuch as plaintiff failed to rebut defendant's prima facie case, defendant's motion for summary judgment dismissing the complaint should have been granted ( see Delta Diagnostic Radiology, P.C., 18 Misc 3d 128 [A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C., 16 Misc 3d 131 [A], 2007 NY Slip Op 51342[U]).
Golia and Steinhardt, JJ., concur.
Weston Patterson, J.P., dissents in a separate memorandum.
In my view, the order, insofar as appealed from, should be affirmed. The motion court properly found that defendant failed to satisfy its burden and, thus, was not entitled to summary judgment.
It is well settled that the proponent of a summary judgment motion bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering proof in admissible form (CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). The requirement of tendering proof in admissible form is a strict one, which must be satisfied before any burden is shifted to the opposing party ( see e.g. Zuckerman, 49 NY2d at 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068) . Indeed, failure to submit such proof mandates denial of the motion, regardless of the sufficiency of the opposing papers ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad, 64 NY2d at 853; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555).
In this action to recover assigned first-party no-fault benefits, defendant sought summary judgment on the ground that there was a lack of medical necessity. In support of the motion, defendant relied upon a report submitted by a chiropractor, which was purportedly affirmed pursuant to CPLR 2106. Although the report contained a notary stamp, it contained no language indicating that it was sworn to under penalty of perjury. In opposition, plaintiff asserted, in general terms, that defendant's papers relied upon inadmissible evidence. The Civil Court denied the motion, holding that defendant had failed to carry its burden by not submitting evidence in admissible form; namely, that the chiropractor's report did not constitute an affidavit and that CPLR 2106 was inapplicable to chiropractors. Although the majority acknowledges that defendant's proof was not in admissible form, it nonetheless concludes that the defect was waived since plaintiff failed to object below. I disagree.
"While a party generally may not challenge the form of an adversary's motion submission for the first time on appeal . . . this rule should not be extended so as to preclude a motion court from rejecting, on its own initiative, a submission palpably deficient in form" ( O'Connor v Singh , 16 Misc 3d 30 , 31 [App Term, 1st Dept 2007], citing Daus v Cassavaugh , 17 AD3d 837 , 838). It is undisputed that defendant's unsworn submission was patently insufficient to prevail on a summary judgment motion. The fact that this defect was raised by the court, and not by plaintiff, is irrelevant. As noted, the failure to establish a prima facie case with admissible proof mandates denial of the motion without regard to the sufficiency of the opposing papers ( see Alvarez, 68 NY2d at 324).
This is distinguishable from the line of cases in which we have held that the absence of a certificate of conformity accompanying an out-of-state affidavit is not a fatal defect, so that a specific objection is required ( Francis v Allain , 21 Misc 3d 142 [A], 2008 NY Slip Op 52386[U] [App Term 2d 11th Jud Dists 2008]); NYC East-West Acupuncture, P.c. v Maryland Cas. Company, 20 Misc 3d 143 [A], 2008 NY Slip Op 51762[U] [App Term 2d 11th Jud Dists 2008]). While such a defect is merely one of form that can be corrected ( see MBNA America Bank, N.A. v Stehly , 19 Misc 3d 12 , 13 [App Term, 2d 11th Jud Dists 2008]), here, in contrast, an unsworn document offered on a summary judgment motion has no probative value and cannot be cured on a subsequent submission ( see Osborne v Zornberg , 16 AD3d 643 , 645 [2005]).
Moreover, the doctrine of waiver is inapplicable under the facts of this case. Unlike preservation, "[w]aiver connotes the intentional relinquishment or abandonment of a known right" ( People v Ahmed, 66 NY2d 307, 311, citing Johnson v Zerbst, 304 US 458, 464-465). Nothing in the record indicates that plaintiff intentionally relinquished or abandoned any challenge to the sufficiency of defendant's moving papers. To the contrary, plaintiff argued in opposition to the motion that defendant's papers were insufficient, as they contained no evidence in admissible form.
To the extent the majority suggests that plaintiff's argument was insufficient to preserve any objection to defendant's submissions, I disagree. "The doctrine of preservation mandates that an issue is preserved for appellate review, and thus available as a basis for reversal or modification of an order or judgment, only if it was first raised in the nisi prius court" (1 Newman, New York Appellate Practice § 2.02, at 2-4). The purpose of the preservation rule is to alert the trial court to any errors and to afford it an opportunity to correct those errors ( see People v Luperon, 85 NY2d 71, 78). That purpose was fulfilled here, despite the absence of a specific objection from plaintiff. The trial court correctly reviewed the papers and determined that defendant failed to meet its burden of establishing a prima facie case by tendering proof in admissible form. The fact that the court made the determination on its own is of no consequence, and I refuse to "elevate preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question" ( People v Payne , 3 NY3d 266 , 273; cf. Kibler v Gillard Constr., Inc , 53 AD3d 1040 ).
While I acknowledge that the Appellate Division, Second Department, has deemed a similar deficiency waived in the absence of an objection, despite the motion court's consideration of the deficiency on its own ( see Scudera v Mahbubur, 299 AD2d 535), I respectfully disagree with this result. An unsworn document submitted on a summary judgment motion has no evidentiary value and cannot support judgment in the proponent's favor as a matter of law ( see Ayotte v Gervasio, 81 NY2d 1062; see also Seck v Minigreen Hacking Corp. , 53 AD3d 608 ). Summary judgment is a drastic remedy reserved only for those cases in which the proponent has met its burden with admissible proof, and anything less is plainly insufficient ( Pomietlasz v Smith , 31 AD3d 1173 ; Rudnitsky v Robbins, 191 AD2d 488). Since granting summary judgment is tantamount to awarding judgment in lieu of a trial, a proponent's submissions must be in admissible form, and it is incumbent upon the court to deny a motion for summary judgment, even in the absence of an objection, where the submissions are unsworn.
Accordingly, I vote to affirm the order, insofar as appealed from.