My motion for leave to appeal to the Court of Appeals at the Appellate Division, Fourth Department was denied today. The appeal involved the discrete issue whether a defendant within the context of a No-Fault Law threshold summary judgment motion can rely on the unsworn physician records of the plaintiff. The Fourth Department requires that the plaintiff provide the records to the defendant or that the records be certified. The Second and Third Departments have held that a defendant can rely on unsworn records. Therefore, a clear conflict exists on this issue at the Appellate Divisions, and this fact is one of the certiorari factors the Court of Appeals looks for in granting a motion for leave to appeal (see Rule 500.11(d)(1)(v)).
I think the Fourth Department's rule is impractical. I'm interested in learning what you think and what experiences you have had with these threshold motions.
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