Doumanis v. Conzo

• Decision Date: 04 October 1999
• Citation: 696 N.Y.S.2d 201,265 A.D.2d 296
• Parties: George DOUMANIS, et al., appellants, v. Robert CONZO, et al., respondents (and another title).
• Court: New York Supreme Court — Appellate Division

Page 201

696 N.Y.S.2d 201

George DOUMANIS, et al., appellants, v. Robert CONZO, et al., respondents (and another title).

Supreme Court, Appellate Division, Second Department, New York.

Oct. 4, 1999.

Bernstein & Gershman, P.C., Garden City, N.Y. (Richard S. Gershman of counsel), for appellants.

Diamond, Paino, Cardo, King, Peters & Fodera, Brooklyn, N.Y. (Deborah F. Peters of counsel), for respondents.

Richard J. Inzerillo, P.C., Smithtown, N.Y. (Gary A. Pagliarello of counsel), for George Doumanis as defendant on the counterclaim.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered July 10, 1998, as, upon granting renewal of the defendants' cross motion for summary judgment dismissing the complaint, which was granted by order of the same court dated March 31, 1998, adhered to the prior determination.

ORDERED that the order is affirmed insofar as appealed from, with costs payable by the appellants to the respondents.

In this action to recover damages for personal injuries, the Supreme Court, in an order dated March 31, 1998, granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that neither plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102(d). In opposition to the cross motion, the plaintiffs had submitted only papers subscribed by a chiropractor which were denominated as affirmations purportedly made under the authority of CPLR 2106, and related unsworn reports. The Supreme Court noted that those purported affirmations did not constitute competent evidence and, in any event, they contained only conclusory assertions which were insufficient to defeat the cross motion.

The Supreme Court correctly did not take cognizance of the purported affirmations. CPLR 2106 authorizes certain persons, provided that they are not parties to an action, to make a statement which, when subscribed and affirmed to be true under penalties of perjury, may be served and filed in an action in lieu of and with the same force and effect as an affidavit. Persons authorized by CPLR 2106 to make an affirmation may do so without the necessity of appearing before a notary or other official authorized by law to administer oaths or affirmations (see, Alexander Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C2106, at 816). The statute permits attorneys admitted to practice in the courts of the State, and physicians, osteopaths, or dentists authorized by law to practice in the State, to make...