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Weinreich v. A.H. Robins Company

Appellate Division of the Supreme Court of New York, Second Department
Aug 8, 1983
96 A.D.2d 860 (N.Y. App. Div. 1983)

Summary

In Weinreich (supra), the plaintiffs offered no evidence other than the affirmation of the attorney, who obviously had no personal knowledge of the medical facts.

Summary of this case from Davis v. Robins Co.

Opinion

August 8, 1983


In an action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Queens County (Leviss, J.), entered August 27, 1982, granting defendant's motion for summary judgment dismissing the complaint on the ground that the action is barred by the applicable Statute of Limitations. Order affirmed, with costs. This is an action for personal injuries, etc., allegedly caused by the Dalkon Shield, an intrauterine contraceptive device (hereinafter IUD) manufactured by defendant. The action was commenced on January 28, 1982 by service of a summons and verified complaint, which complaint alleged that the device had been inserted on or about September 16, 1972 and removed on March 26, 1980, but did not allege the date of injury. Defendant's answer asserted the affirmative defense of the Statute of Limitations and defendant thereafter moved for summary judgment dismissing the complaint upon that ground. In an affirmation in opposition to the motion, plaintiffs' attorney alleged that the injury, i.e., the onset of pelvic inflammatory disease, had occurred in March, 1980. Special Term granted summary judgment and dismissed the complaint, holding that the cause of action had accrued on the date of insertion of the IUD and was therefore time barred. It has now been determined that a cause of action for injuries caused by the Dalkon Shield accrues as of the onset of the infection which produced the injury, and not on the date of insertion of the device ( Lindsey v Robins Co., 91 A.D.2d 150). However, while Lindsey is contrary to the holding of Special Term in the case at bar, reversal is not required, and we affirm on a different ground. Although the standard of proof required of the party opposing summary judgment is more flexible than the standard applicable to the movant, the opponent is nevertheless required to tender evidentiary proof in admissible form reflecting such opposition or alternatively is required to demonstrate an acceptable excuse for failure to do so ( Guzzardi v Perry's Boats, 92 A.D.2d 250; Maresca v Berson, 84 A.D.2d 760, app dsmd 57 N.Y.2d 777). In the case at bar, plaintiffs failed to do either. The date of injury concededly was not alleged in the complaint, and the only allegation regarding the onset of injury was contained in the affirmation of plaintiffs' attorney, filed in opposition to the motion for summary judgment, which stated that plaintiffs intended to prove at trial that the injury occurred in March, 1980. This affirmation was not based on personal knowledge and did not constitute evidentiary proof in admissible form, and it was therefore to be disregarded ( Guzzardi v Perry's Boats, supra, p 253). Thus, plaintiffs failed to raise any issue of fact with respect to the date of the alleged injury, and the motion by defendant for summary judgment was therefore properly granted. Thompson, J.P., O'Connor, Weinstein and Bracken, JJ., concur.


Summaries of

Weinreich v. A.H. Robins Company

Appellate Division of the Supreme Court of New York, Second Department
Aug 8, 1983
96 A.D.2d 860 (N.Y. App. Div. 1983)

In Weinreich (supra), the plaintiffs offered no evidence other than the affirmation of the attorney, who obviously had no personal knowledge of the medical facts.

Summary of this case from Davis v. Robins Co.

In Weinreich v. A.H. Robins Co., 96 AD2d 860 (2d Dept. 1983) the appellate court held, in assessing the merit of a summary judgment motion, that while the standard of proof for the opposing party is more flexible than the standard for the movant, absent evidentiary proof in admissible form, the opponent must at least proffer a reasonable excuse for the failure to present such evidence.

Summary of this case from Snyder v. Reveo Inc.
Case details for

Weinreich v. A.H. Robins Company

Case Details

Full title:CELINA WEINREICH et al., Appellants, v. A.H. ROBINS COMPANY, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 8, 1983

Citations

96 A.D.2d 860 (N.Y. App. Div. 1983)

Citing Cases

Snyder v. Reveo Inc.

Wright v. South Nassau Communities Hosp. 254 AD2d 277 (2d Dept. 1998). In Weinreich v. A.H. Robins Co., 96…

Sherry v. Queens Kidney Center

Such an omission is fatal when opposing a defense based on the Statute of Limitations which, of course, is…