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Expert Reports in Lieu of Sworn Affidavits Are Sufficient to Establish a Question of Fact.

April 1, 2010

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In <i>Mendez v. Mendez</i>, Index No. 111435/04, 2010 NY Slip Op 02717, the First Department upheld the trial court’s denial of defendant’s motion for summary judgment, seeking the dismissal of plaintiff’s claims of permanent consequential limitation of use of body organ/member and significant limitation of use of body function/system resulting from a motor vehicle accident.
Simply because the defendant established a prima facie case that plaintiff did not suffer any permanent loss of use through expert reports did not entitle the defendant to summary judgment. Rather, plaintiff’s expert affirmations and MRI reports served to raise issues of fact as to the permanency of the injuries. The fact that the MRI reports were unsworn was of little consequence since plaintiff’s expert’s opinions were also related to their personal observation and findings.

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