In motion practice it is very important to submit the proper papers to obtain the relief requested. This is vividly illustrated by the First Department's decision in Walker v City of New York, 2007 NY Slip Op 09671 on Thursday.
The action was a medical malpractice action involving an infant who was injured at birth. The case was dismissed under CPLR 3216 for the plaintiff's failure to complete all outstanding discovery. The plaintiff then moved to vacate the dismissal. To vacate a dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand and a meritorious cause of action. In making the motion, the plaintiff failed to submit the affidavit of a medical expert to demonstrate the merits of the action. While the motion was granted by Supreme Court, the First Department reversed for failure to submit such an affidavit. On the appeal, the plaintiff asked the Court to take judicial notion of a physician's affirmation submitted by the plaintiff in a separate prior motion.
The Court refused to do so stating (1) that appellate review was limited to the record made on the motion at issue, (2) the mere presence of a document in a court file does not mean that judicial notice can be taken of any factual material asserted in the document, and (3) that if it did so it would be encouraging sloppy motion practice.
Practitioner's are thus warned not to rely on material that may already exist in the court file when making motions.
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