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Irizarry v. Lindor, 110 A.D.3d 846 (2d Dept 2013)

Defendant’s motion for summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) was granted.  Plaintiff moved to reargue, which was granted, and upon re-argument, vacated the award of summary judgment to defendant. Defendant appealed.

The Appellate Division modified the decision, holding that the lower court properly granted re-argument, however, upon re-argument the lower court should have adhered to its prior determination in granting defendant’s motion.  The Appellate Division noted: “Contrary to the plaintiff's contention, the certification of the medical records and reports by the records custodian of the subject medical facility was not sufficient to properly place the medical conclusions and opinions contained in those records and reports before the court, since those opinions must be sworn to or affirmed under the penalties for perjury”.  The Court also noted plaintiff’s physician’s opinion was speculative, in failing to address degenerative findings, and that even if considered, the noted range of motion restrictions were insignificant.

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