Cubero v. DiMarco

Appellate Division of the Supreme Court of New York

Cubero v. DiMarco

272 A.D.2d 430, 708 N.Y.S.2d 324, 2000 N.Y. App. Div. LEXIS 5594

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 2000

StatusPublished

Cited by2 cases

This text of 272 A.D.2d 430 (Cubero v. DiMarco) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cubero v. DiMarco, 272 A.D.2d 430, 708 N.Y.S.2d 324, 2000 N.Y. App. Div. LEXIS 5594 (N.Y. Ct. App. 2000).

Pincite

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Milano, J.), dated July 6, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102, and (2) a judgment of the same court, dated September 10, 1999, which dismissed the complaint. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are [431]*431brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The defendant’s motion papers established a prima facie case for summary judgment (see, Licari v Elliott, 57 NY2d 230). In opposition to the motion, the plaintiff submitted a report prepared by a chiropractor. Although the chiropractor’s report stated “I hereby affirm the truth of the foregoing”, the chiropractor failed to appear before a notary or other such official to formally declare the truth of the contents of the document. Accordingly, the chiropractor’s report did not constitute competent evidence (see, CPLR 2106; Doumanis v Conzo, 265 AD2d 296), and the defendant’s motion for summary judgment dismissing the complaint was properly granted. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Milano, J.), dated July 6, 1999, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102, and (2) a judgment of the same court, dated September 10, 1999, which dismissed the complaint. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are [431]*431brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The defendant’s motion papers established a prima facie case for summary judgment (see, Licari v Elliott, 57 NY2d 230). In opposition to the motion, the plaintiff submitted a report prepared by a chiropractor. Although the chiropractor’s report stated “I hereby affirm the truth of the foregoing”, the chiropractor failed to appear before a notary or other such official to formally declare the truth of the contents of the document. Accordingly, the chiropractor’s report did not constitute competent evidence (see, CPLR 2106; Doumanis v Conzo, 265 AD2d 296), and the defendant’s motion for summary judgment dismissing the complaint was properly granted. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

272 A.D.2d 430, 708 N.Y.S.2d 324, 2000 N.Y. App. Div. LEXIS 5594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cubero-v-dimarco-nyappdiv-2000.

Opinion

Related

Cite This Page — Counsel Stack