Calendar Date: April 26, 2017
Grasso, Rodriguez, Grasso & Burke, PLLC, Schenectady
(Christopher R. Burke of counsel), for appellants.
Sullivan Behr, Syracuse (David H. Walsh of counsel), for
Capitaland Taxi, Inc. and another, respondents.
& Beaumont PC, Albany (John H. Beaumont of counsel), for
B & E Peek Enterprises, Inc. and another, respondents.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Mulvey,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Reilly Jr., J.), entered
April 14, 2016 in Schenectady County, which granted
defendants' motion for summary judgment dismissing the
Earl Snare and his wife, derivatively, commenced these
actions alleging that Snare sustained a serious injury within
the meaning of Insurance Law § 5102 (d) when a taxicab
owned by defendants and driven by one of defendants'
employees collided with the rear of his vehicle. After
defendants answered, Supreme Court joined both actions for
discovery and trial. Following an independent medical
examination (hereinafter IME) of Snare, defendants moved for
summary judgment dismissing the complaints, arguing that
Snare had not suffered a serious injury causally related to
the accident. Plaintiffs opposed the motion, contending that
Snare suffered a serious injury under the permanent
consequential limitation of use, significant limitation of
use and 90/180-day categories under Insurance Law § 5102
(d). Ultimately, Supreme Court granted defendants' motion
and dismissed the complaints. Plaintiffs appeal.
limited by their brief, plaintiffs argue that defendants
failed to meet their initial summary judgment burden
regarding the claim of serious injury under the 90/180-day
category. We agree. Initially, we note that the record
refutes defendants' contention that plaintiffs did not
allege this category in their bill of particulars, and, in
any event, Supreme Court fully addressed the merits of
whether Snare suffered a serious injury under the 90/180-day
category (cf. Schulz v State of N.Y. Exec., 134
A.D.3d 52, 55 , appeal dismissed 26 N.Y.3d
1139 , lv denied 27 N.Y.3d 907');">27 N.Y.3d 907 ).
primarily relied upon the IME report and Snare's
deposition testimony in support of their motion for summary
judgment. The IME report, however, does not constitute
competent evidence and should not have been considered by
Supreme Court in assessing whether defendants met their
initial burden inasmuch as the independent medical examiner
did not affirm that the report was true "under the
penalties of perjury" (CPLR 2106 [a]; see
Barouh v Law Offs. of Jason L. Abelove, 131 A.D.3d 988, 991
; Hyatt v Maguire, 106 A.D.3d 1180, 1181
; Niazov v Corlean Cab Corp., 71 A.D.3d 749,
749 ; Moore v Tappen, 242 A.D.2d 526, 527
). As for Snare's deposition testimony, which was
taken more than two years after the accident, he was not
asked whether his injuries prevented him from performing his
usual and customary daily activities during the dispositive
time period - namely, "the  days immediately
following the occurrence of the injury" (Insurance Law
§ 5102 [d]). In light of this, we find that defendants
failed to meet their "initial burden of establishing
with competent medical evidence that [Snare] did not suffer a
serious injury" under the 90/180-day category (Moat
v Kizale, 149 A.D.3d 1308, 1310  [internal
quotation marks and citations omitted]; see Poole v State
of New York, 121 A.D.3d 1224, 1225 ; Shelley v
McCutcheon, 121 A.D.3d 1243, 1246 ). Accordingly,
defendants were not entitled to summary judgment dismissing
that part of the complaints.
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as granted defendants' motion
for summary judgment dismissing that part of the complaints
alleging that plaintiff Earl Snare suffered a serious injury
under the ...