Smith v. Maines Paper & Food Serv., Inc.

Summary

The Appellate Division, Second Department, affirmed an order denying the plaintiffs' motion for summary judgment on liability and on whether Harold L. Smith sustained a serious injury under Insurance Law § 5102(d). The court held that the defendants' initially unsworn expert submissions could be considered after the experts submitted sworn affidavits incorporating and reaffirming those submissions, because CPLR 2001 permitted the defect to be cured without prejudice to the plaintiffs. The court concluded that the defendants thereby raised triable issues of fact.

Holdings

1. Under the circumstances of this case, the Supreme Court providently exercised its discretion in considering sworn affidavits that incorporated and reaffirmed the contents of the defendants' earlier unsworn expert submissions, because CPLR 2001 permitted the defect to be disregarded where the plaintiffs suffered no substantial prejudice.
2. The plaintiffs established prima facie entitlement to summary judgment on liability and on the serious-injury issue, but the defendants' admissible expert affidavits raised triable issues of fact; therefore, summary judgment was properly denied.

Questions Presented

1. Whether the defendants' sworn expert affidavits, submitted after their initial unsworn expert submissions and incorporating those submissions, could be considered to cure the initial defects under CPLR 2001.
2. Whether the defendants raised triable issues of fact sufficient to defeat the plaintiffs' motion for summary judgment on liability.
3. Whether the defendants raised triable issues of fact sufficient to defeat the plaintiffs' motion for summary judgment on whether Harold L. Smith sustained a serious injury under Insurance Law § 5102(d).

Disposition

affirmed