noting that although the credibility of a physician's affidavit should not be weighed on a motion for summary judgment, doing so is appropriate where the affirmation appears to be tailored to the requirements of the no-fault lawSummary of this case from Ahmed v. H E Transport, Inc.
April 24, 1995
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, with costs.
Upon the record before us we agree that the plaintiff has not made out a prima facie case of serious injury. In opposition to the defendant's motion for summary judgment, the plaintiff submitted a medical affirmation, dated August 24, 1993, from her examining physician, Dr. Alan Genicoff, in which he avers that as a result of the accident the plaintiff sustained, inter alia, disc herniation at seven different locations in the spine. However, Dr. Genicoff's report dated January 31, 1990, his subsequent submission to the no-fault carrier on October 26, 1990, after approximately 30 office visits, and the report of the MRI, are barren of any finding of disc herniation. Rather the relevant portions of those assessments state "acute cervical sprain" and "acute lumbrosacral spine sprain".
As a general rule the credibility of an affidavit should not be weighed on a motion for summary judgment (see, Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338; Computer Strategies v Commodore Bus. Machs., 105 A.D.2d 167). However, Dr. Genicoff's failure to reconcile his reports with his findings in his subsequent affirmation, based on those reports, makes it clear that the assertions in his affirmation were tailored to meet the statutory requirements and should therefore be disregarded (see, Lopez v Senatore, 65 N.Y.2d 1017; Marshall v Albano, 182 A.D.2d 614). Balletta, J.P., Thompson, Santucci, Altman and Hart, JJ., concur.