UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED FOR SUMMARY JUDGMENT MOTION; CREDIBILITY OF AFFIANTS SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT MOTION.

In the course of reversing Supreme Court's grant of summary judgment to defendants in a car-accident case, the court noted that unworn and uncertified medical records were admissible to support plaintiff's serious-injury claim because the documents were submitted by the defendants or because the documents were relied upon by plaintiff's expert, who provided a sworn opinion. In addition, the court noted that the credibility of affiants should not, as a general rule, be considered in deciding a summary judgment motion:

Although … many of the medical reports and records submitted by plaintiff in opposition to the cross motions were unsworn and uncertified, we may consider those reports and records that were “submitted by defendants . . . or were referenced in the reports of physicians who examined plaintiff on their behalf, and [defendants] submitted the reports of [those physicians]” … . To the extent that plaintiff submitted unsworn and uncertified medical reports and records that were not submitted by defendants or relied upon by their expert, we may nevertheless rely on the medical opinions of plaintiff's experts because “the various medical opinions relying on those . . . reports [and records] are sworn and thus competent evidence” … . … [T]he court erred in discounting entirely the opinion of plaintiff's treating physician due to perceived errors in his report. “The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned” … . Cook v Peterson, 2016 NY Slip Op 01950, 4th Dept 3-18-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/EVIDENCE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/SUMMARY JUDGMENT MOTIONS (UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)