Brief of Plaintiff-Appellant. Monicka C. Jones, Plaintiff-Appellant, Pro Se., 225 Park Place, 5F., Brooklyn, NY., NY 11238, (718)

Transcription

1 Supreme Court, Appellate Division, Second Department, New York. Monicka C JONES, Plaintiff appellant, v. AIMEE LYNN ACCESSORIES & RAFEAL NINO, Jointly and Individually, Defendants- Respondents. No March 1, Kings County Clerks Index No /01 Brief of Plaintiff-Appellant Monicka C. Jones, Plaintiff-Appellant, Pro Se., 225 Park Place, 5F., Brooklyn, NY., NY 11238, (718) *1 STATEMENT PURSUANT TO CPLR The index number of the case in the Court below is 18186/ This action was commenced in Supreme Court, Kings County. 3. The full names of the parties are set forth in the caption. 4. This action was commenced on or about August 1, Defendant answered on or about August 20, Plaintiff commenced this action post suffering serious personal injuries, exacerbations and additional damages to her body while in a car stopped at a red light on Flatbush Avenue, Brooklyn, On October 21, Plaintiff was returning from her program in architectural design when stuck by a truck owned, or leased, by "Aimee Lynn Accessories". Plaintiff for ten years of illness was unable to work or re-school herself. However after ten years of rehabilitation, medicines and therapies she had been successful in returning and being accepted into "New York Technical College's program in Architectural Design", on August 29th, Plaintiff in 1997 had learned she had "Seronegative Rheumatoid Arthritis", added to her earlier work-related-injuries causing, "Osteoarthritis, and "Supraclavicular Neuritis", after ten years of being homebound, plaintiff finally was able to return to college. Defendant's irresponsible recklessness ended that and added new injuries. 6. This appeal is from a March 22, 2004 decision dismissing it. *i TABLE OF CONTENTS PRELIMINARY STATEMENT QUESTION PRESENTED ARGUMENT THE LOWER COURT SHOULD BE REVERSED DUE TO, POINT DEFENDANTS USE OF KNOWN MISREPRESENTED MEDICAL REPORTS ON PLAINTIFFS INJURIES CONCEALED FROM THE COURT WHICH UPON SUCH LIES GRANTED

2 DISMISSAL. POINT DEFENDANTS COUNCIL APPRAISED OF ITS DOCTORS KNOWN MISREPRESENTATIONS FALSIFIED ABOUT PLAINTIFF. DEFENDANTS, STILL USED TAINTED EVIDENCE TO THE COURT TO GAIN DISMISSAL ON CPLR 5015(a) (3), & 5102(d)...DEFENDANTS ARE IN CONTEMPT OF THE COURT POINT PLAINTIFF MET AND SURPASSED HER LEGAL BURDEN UNDER INSURANCE LAW 5102(D)., SECT. 137 WCL No.6 POINT IV PLAINTIFFS ATTORNEYS IMPROPER ACTIONS, CRITICAL OMISSIONS, NEGELECT, AND FAILURE TO PROTECT PLAINTIFFS ISSUES FOR APPELATE COURT REVIEW, WITH DEFENDANTS CONCEALMENT PLAINTIFF IN FACT WAS NOT REPRESENTED NOR HAD ANY JUSTICE IN THIS CRITICAL CASE AT ALL. 1. Unless otherwise indicated, numbers in parenthesis refer to The Record On Appeal *1 PRELIMINARY STATEMENT Should summary judgment be granted, and stand dismissing plaintiffappellants complaint where a valid claim of plaintiff injuries and damages sustained by the defendants truck used for business in unsafe, improper, reckless and irresponsible manner. Especially where defendants physicians Independent Medical Examination was in fact known to be a lie, and did conceal plaintiffs' actual injuries from the Court. Even if this were not the case, which here most definitively is, i.e., defendant doctors intentionally lying and swearing under penalty of perjury that plaintiff had no injuries. Plaintiff-appellant restates the law of burden upon plaintiff in this case, "McKinney's Insurance Law 5104," "Once the proponent of a motion for summary judgment has presented a prima facie case that the plaintiffs claimed injury is not "serious" under the New York's No-Fault Insurance Law, the burden shifts to plaintiff to demonstrate that he did sustain such an injury or that there are questions of fact as to whether his/her injury was "serious.". As to questions of fact which plaintiff-appellant maintains existed before the lower Court, plaintiff-appellant has fairly demonstrated and submitted as plaintiff to the lower Court she had brought along a witness (313) to her obligated by defendant's Independent Medical Examination ("IME") dated February 23, A Motion to Renew is currently undecided before this same Court. Where plaintiffs witness *2 additionally had, while being present throughout said medical examination, also had taped recorded with time stamp the defendantsrespondents (66-77) medical exam ("IME") by its hired physicians Dr.'s Emmanuel, and Neystat, Md.'s ( ) conducted upon the plaintiff, now as plaintiff-appellant. Said defendants-respondents doctors - Dr.'s J. Emmanuel, and Dr. Marina Neystat, Md.'s, both who swore (32-33, 65-66, 73, 240) they had performed such medical examination on the plaintiff for defendants, in plaintiff case, indexed as 18186/91, Kings County Supreme Court. Defendants-respondents doctors swearing under oath and on punishment of perjury that the plaintiff in fact sustained "no injuries (65-66, 73, 240)." It is plaintiff-appellants strongest contention that medical examinations as in this case, where plaintiff was obligated to an IME

3 upon her by the defendants-respondents, was based upon, as written in its report, "stated specific tests allegedly objectively analyzed (66, 71, 72). It is plaintiff-appellants strongest contention such reports and tests as reported about her abilities as effected by injuries plaintiff sustained in that October 21,2000 automobile crash, as made about plaintiff by defendant-respondents doctors to the Hearing Court (66, 71) by physicians Neystat and Emmanuel medical report about plaintiff (66, 72) are not mere opinions or "opinions mixed with fact but are primarily "factual". Supposedly preformed medical tests which others performing those same tests and having the same or similar results would conclude as well (66,72) that, "The claimant (72) is not disabled from a neurological view." *3 This Court will note, plaintiff-appellant respectfully points out that this (72) "The claimant is not disabled from a neurological view," is in fact a completed and separate sentence from the next sentence, which then states (72), "It is my professional opinion she (plaintiff) may continue with her normal activities of daily living without limitations." The first sentence of each of the defendants-respondents diagnoses analyses about the plaintiff as sworn to and stated clearly written, is, "the claimant (plaintiff-appellant) is not disabled..." Keeping from the Courts eyes the facts that these medical reports made about the plaintiff in her automobile case indexed 18186/01 were specifically designed to be done by lies and perjury for defendants to make its case upon dismissal before the Hearing Court. Which factually which "in truth and fact is a or statements of opinion implied that it is based upon facts **553 which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable (see, Hotchner v. Castillo-Puche, 551 F.2d 910, 913 [2d Cir.], cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S S.Ct. 120, 54 L.Ed.2d 95; cf. *290 Cianci v. New Times Pub. Co., 639 F.2d 54, 64, 65 [2d Cir.]). Additionally by defendants-respondents lies and misrepresented IME about the plaintiff were not enough to reverse the Hearing Courts decision. Plaintiff-appellant also points out that while being examined (66,71,72) that 23rd day in February 2000, plaintiff was also hurt by the defendants own hired orthopedic surgeon - Dr. J *4 Emmanuel, by his (J. Emmanuel, Md.) unreasonably pulling and twisting plaintiffs ankle (311,312) beyond its available ability, while in pain, and range of motion, further exacerbating plaintiffs condition. Are equally as such actionable under defendants-respondents, "reasonable duty of care" to the plaintiff-appellant they failed miserably in providing plaintiffappellant as plaintiff in her case indexed 18186/01. See, Roth v. Tuckman, 162 A.D.2d 941, 942, 558 N.Y.S.2d 264, lv. Denied 76 N.Y.2d N.Y.S2d 768, 565 N.E.2d 517, See also Murphy v. Blum, 160 A.D.2d 914, 915, 554 N.Y.S.2d 649; Lo Dico v. Caputi, 129 A.D.2d 361, 364, 517, N.Y.S.2d 640. The Court of Appeals has held that "[c]onduct may be deemed malpractice, rather than negligence, when it 'constitutes medical *783 treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' " Scott v. Uljanov, 74 N.Y.2d 673, , 543 N.Y.S.2d 369, 541 N.E.2d 398, quoting Bleiler v. Boidner, 65 N.Y.2d 65, 72, 489 N.Y.S2d 885, 479 N.E.2d 230. Concluding that because defendant utilized the same professional skills in examining plaintiff at the insurance carrier's request as he would have in examining plaintiff for treatment purposes, there is sufficient nexus to medical treatment to require further inquiry to determine whether plaintiffs cause of action **491 sounds in malpractice or negligence (see, Twitchel v. MacKay, 78 A.D.2d 125,434 N.Y.S.2d 516) As was said in Miller v. Albany Med. Center Hosp., 95 A.D.2d 977, 464 N.Y.S2d 297.

4 Additionally as plaintiff-appellant will show, infra, by defendantsrespondents *5 own council Squires, Cordrey and Nobel, L.L.P., either failed to impart to their own client or did impart to its client defendants "Aimee Lynn Associates," the plaintiff-appellants fax (308) sent them. Of plaintiffs taped transcription notarized and ( ) signed by plaintiff-appellants brought along witness to that IME dated February 23rd In either case that IME report about plaintiff by the defendants-respondents hired doctors Neystat and Emmanuel, Md.'s., should be entirely stricken from the record. Such facts need and require investigation as to whether the defendants themselves or their legal council was in fact in contempt of Court. Finally plaintiff-appellant believes she should be allowed to have her day in court by being represented by legal council something which to this day has in fact and by reality not been had. For plaintiff immediately post learning of the many and continual great deficiencies by her attorney, upon the Hearing Courts decision of March 2004 (6-9), plaintiff seeing her evidences' omitted, and failures of acceptable legal procedures designed to be protective of plaintiffs rights and life by plaintiffs own attorneys "Riconda and Garnett, L.L.P". Plaintiffs attorney despite new evidence timely supplied him (Garnett, Esq.) ( ) et al, chose to file an appeal (1-11) instead of a Motion to Renew and Reargue, thus making plaintiffs many critical issues of material fact un-reviewable under Appellate Court rules. The lower Court erred and should be reversed in its entirety. *6 :QUESTIONS PRESENTED: Plaintiff contends as question before this Court. By plaintiff not being represented in fact or reality by any real or meaningful legal council, should not this Court allow plaintiff a right to amend her complaint and use the proper affidavit in correct format before the Courts. Which plaintiffs own lawyers failed to procure even from this cases onset. Seen in the Hearing Court Judges decision regarding plaintiffs Rheumatologist summary affidavit used. Plaintiff with due diligence upon finding out in fact her own attorneys were not even involved with her case but had their office secretary's i.e., "non-lawyers" do plaintiffs motions and reply's for plaintiff to defendant fired them. Now as "pro se" herself submitted a "motion to renew and reargue" May 15th 2004 fairly demonstrating defendants IME of plaintiff was a lie and wholly untrue, defendants knowingly (308) having used tainted and misrepresented medical reports (65-76,208). As well as many of plaintiffs specific and additional damages (208, , 312), along with multiple tests blood, laboratory, radiological and bone density comparative testing over the years plaintiff had in fact undergone. Together with plaintiffs joint and limb ranges both "passive" and "active ranges of movement goniometrically and quantitatively tested by her physicians. Joint Ranges plaintiff over many years of treatment, drugs, therapies and rest she had gained lust one month prior (August 2000 office examination) to the *7 accident ( ) and which directly due to that severe truck accident hitting plaintiff lost, following the October 21,2000 hitting her, ( ,208,305, ,) this by seen by plaintiffs letter (168) and specialist in Rheumatology, Dr. Peggy Garjian, Md. ( , ), plaintiff had been seeing for several years, and other three physicians, ophthalmologist and one dentist (297- Montas Md., 303-Langman Md., 158-Murray DDS., 193-Laurant Md., 193- Parker Op.) Decisively ending plaintiffs' new education sought as an architect, she was pursuing (17, 88,90, ). Plaintiff had previously lost two gainful careers to her illness now severely exacerbated and additional disabilities (157, 164, 173, 175, 176) added by defendants smacking into plaintiff (285, ) that October 2000.

5 Question, has not the Hearing Court erred in summary deciding as it has been held continually that in a motion to dismiss pursuant to CPLR 3211, as here in this case, "pleading is to be afforded a liberal construction. The court is to accept as true all facts as alleged in the complaint; accord Plaintiffs the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory. Dismissal is granted only if the evidence conclusively establishes a defense to the asserted claims as a matter of law." Plaintiff-appellant had apprised her attorney Edward Garnett, Esq., of the firm of Riconda & Garnett, L.L.P., that she had brought along a witness to be present throughout plaintiffs being examined at the independent medical exam of her dated *8 February 23rd 2003 (308) and had additionally taped recorded with time stamp that exam. In addition, plaintiff informed Garnett, Esq., that tape was transcribed and that transcription notarized March 25th 2003 (308). Plaintiff was told to send a copy of said transcription of plaintiffs IME to his office, this was done that week in March 2003, in April the lower Court decided against plaintiff, in May of 2003 under advice by plaintiffs attorney (308) plaintiff faxed a copy of the IME transcription to the defendant Aimee Lynn Associates legal Council of "Squires, Cordrey and Noble, Esq.'s, L.L.P (308). Factually plaintiff-appellants attorney Mr. Edward Garnett, Jr. Esq., had omitted so much of plaintiffs' evidentiary supportive documents of her evidences timely supplied plaintiffs-appellants lawyer. As well as failing to seek a Motion of renewal and rearguement, seeking instead to file for an appeal (1-11) Plaintiff-appellant contends although not a lawyer, it obvious in this case it is more a case where plaintiff without her knowledge had no legal representations whatsoever in this all-important case. Baumann v Marinaro (1984) 95 NJ 380, 471 A2d 395; Re T. (1967) 95 NJ Super 228, 230 A2d 526. "Here, since there was no neglect on the part of the plaintiff himself and he entrusted his case to his attorney, the plaintiff should not be the victim of his attorney's carelessness, concluded the court, noting that the plaintiff had shown a meritorious claim, due diligence in seeking relief, and an absence of substantial prejudice to the defendant." *9 Plaintiff-appellant finally poses this question before this high Court. Is not her taped recording of defendants-respondents IME of February 23rd 2003 evidence allowable before the Court, both as dispositive and substantive? While plaintiff-appellant Pro se is not a lawyer or skilled in law sciences leaned; as defined in the statute, that as the burden shifts to plaintiff, sadly now by her attorneys gross incompetence, negligence. Had to, by her lawyers gross incompetence and Garnett's repeated technical failures to represent her case and interest, i.e., Garnett Esq., rather then file for a motion to renew and reargue on the evidence and the taped recording transcript dated signed and notarized (313), See: Roedl v Lane (1976, 3d Dist) 41 Ill App 3d 1062, 355 NE2d 354 (tape recordings that are otherwise competent, material, and relevant are admissible if a proper foundation has been established);); State v Warwick (1972) 158 Mont 531, 494 P2d 627 ("sound recordings are admissible in both civil and criminal cases where the recording is both material and relevant to the issues before the court and a proper foundation is laid"). Equally plaintiff-appellants attorneys were more then deficient as they were advised that at the IME (65-77) plaintiff had brought along a witness whose signed, dated and notarized affidavit (308) preceded the IME report. Yet while all fully available to Garnett's Esq., office, instead files an appeal. Which by law those issues not put into the record or challenged are lost to appellate review. *10 Plaintiff by her "Pro se" "motion to renew" also supplied the lower Court with a her

6 medical specialists affidavit (Peggy A. Garjian, Md.) complete medical exam series assessment for her "social security disability application" of "1998", dated two and a half years prior to plaintiff-appellants automobile accident of October Plaintiff-appellants Rheumatologist; the burden now having shifted upon plaintiff who as Pro se, contends under "Rovello v Orofino Realty Co"., 40 NY2d 633, 635, 636; also, such additional submissions of the plaintiff, if any, will similarly be "given their most favorable intendment" See, Arrington v New York Times Co., 55 NY2d 433, 442. As such plaintiff-appellant strongly contends in this her case, one of critical and high importance; plaintiff-appellant will without regard to her legal rights become a ward of the State should this Court not grant a reversal of the Hearing Courts decision to dismiss on these serious and critical relevant issues. Plaintiff-appellant seeking her cases restoration due to the lies and known to be tainted evidence defednats used repeatedly against plaintiff in the lower Court. As well as plaintiff in the lower Court in fact and reality having no legal representation whatsoever despite having a lawyer his office using secretaries to provide answers to the defendants motions and affirmations to dismiss. As well as plaintiff attorneys (Garnett & Riconda, LLP) failing, by not providing any legal redress for plaintiff, filing "an Appeal" rather then preserving Appellate Court review by filing instead of an improper legal technique of a proper "Motion; well required by any standard of legal representation to "Renew and *11 Reargue." In addition, plaintiff-appellants attorneys by their omitting plaintiffs timely supplied with "critical documents of plaintiff" to the Hearing Court. For the above reasons plaintiff-appellant believes the Hearing Court erred and should be reversed in its entirety. As well as have the Courts allowances in stricken the defendants-respondents IME (65-76) of her dated February 23rd 2003 and the Hearing Courts decision in its entirety reversed and plaintiff-appellants automobile case indexed 18186/01 restored for immediate trial. *12 POINT ONE Defendants-respondents IME (65-76) conducted on the plaintiff in her personal injury suit indexed as 18186/01 was in fact and reality a shame, defendants using perjured and misrepresented documents and falsified medical reports to make its dismissal under a summary judgement before the Hearing Court. Defendants-respondents Aimee Lynn Associates knowingly keeping from the Courts eyes using lies and misdirected reports and false statements with purpose to conceal plaintiffs true injuries sustained in that October auto accident. By defendants intentional deceit not based upon their opinion but specific medical tests (72) "she plaintiff) walked with a normal gait, with no limp or ataxia" and under "Diagnoses" 1. Post concussion syndrome resolved. And 2. Normal neurological examination." Here plaintiff-appellant strongly contends the actionable element of a "mixed opinion" is not the false opinion itself--it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v. New York Times Co., 75 A.D.2d 417, 422, 430 N.Y.S.2d 271; cf. Silsdorf v. Levine, 59 N.Y.2d 8, 14, 462 N.Y.S.2d 822, 449 N.E.2d 716. All this show and demonstrate the medical tests supposedly; plaintiffappellant will fully and fairly show this Court these medical tests (66,71, 72) which in reality *13 plaintiff, infra will filly demonstrate such tests almost all were not done, done by these defendantsrespondents doctors Emmanuel and Neystat Md.'s - who wrote such tests

7 (65-76) as written were in fact performed upon the plaintiff-appellant. Which were designed to determine medical efficacy and wellness of plaintiff-appellants limbs, segment, and body parts being tested. As by an educated Md., performed with specifically applied medical tests upon the plaintiff. Tests supposedly performed by Neystat and Emmanueldefendants-respondents doctors, which a layperson would be unable to perform and by such intentional deceit and lies and misrepresented false medical reports are therefore actionable. See, Steinhilber v. Alphonse, 68 N.Y.2d 283, , 508 N.Y.S2d 901, 501 N.E.2d 550. Where the Court, "did not, however, reach the question of the adequacy of the complaint under Letter Carriers v. Austin and Linn v. Plant Guard Workers, because it concluded that both communications were statements of pure opinion and that the complaint should, for that reason, be dismissed. The Appellate Division, therefore, modified the order and granted the motion dismissing the complaint in its entirety. The dissenters at the Appellate Division would have denied the motion as to the first cause of action holding that the statement in the taped recorded message--"she lacks only three things to get ahead, talent, ambition, and initiative"--was an expression of mixed fact and opinion which, as distinguished from a statement of pure opinion, is actionable (115 AD.2d 844, , 495 N.Y.S.2d 907). *14 Here in this case where defendants-respondents Aimee Lynn Associates hired two doctors, an orthopedic surgeon - "Emmanuel" Md. and a neurologist "Neystat" Md., both writing under oath and punishment of perjury they had performed certain diagnostic tests (66,71) upon the plaintiff that resulted in their professions skilled diagnostic evaluations, and are definitively not "mere opinions!" Medical tests, plaintiff-appellant contends, based upon specific repeatable tests as made herein by defendants-respondents doctors "allegedly" performed (66,71) upon plaintiff, by "Goniometric analyses," (for ranges of a limb or body segments available movement). "Manual muscle testing," to analyze the limb or segments muscles power within that specific movement made against a variably applied resistance which the examiner applies to the patient or person being examined, in this case-plaintiff-appellant. "Cranial nerves tests," tests (66, 71) that show the intact nerves to its specific muscle, which allow a body part or segment being observed by the examiner, to function, i.e., a part so innervated to perform properly, e.g. a tongue to move, eyes to move, head and neck, or an ankle, or ones back to move etc. All as skilled in their profession, which a layperson would not be able to do or analyze without the requisite training is actionable. For example a justice of the Courts would not be expected to know these tests and know what in fact these medially applied tests actually do revel about a persons ability, or conversely "disability" in performing a or any daily activities. *15 Clearly someone, G-d forbade missing an arm or an eye, one hearing or reading this fact even a layperson, may and can intuit relatively well, that disability that would as sequela form such missing body part arise. However a "manual muscle testing" or a limbs "Goniometric analyses" (angular measurements of a limbs ranges able to achieve) of a person performing such a medical tests, either actively or passively doing such a motion, would in life and truth be virtually an analyses of medical opinion unknown to the hearer or layperson, even one so educated as a Justice of the or this Court. As such the medical report derived upon such tests would be conclusively applied due to the laypersons inability to understand what and why the results gleaned allow the tester-here the doctors to have made such final assessments by a based recitation of the facts upon written in its medical report as in an IME before a justice. Which in truth and fact is a or statements of opinion implied that it is based upon facts **553 which justify the opinion but are unknown to

8 those reading or hearing it, it is a "mixed opinion" and is actionable (see, Hotchner v. Castillo-Puche, 551 F.2d 910, 913 [2d Cir.], cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 cf. *290 Cianci v. New Times Pub. Co., 639 F.2d 54 64, 65 [2d Cir.]). *16 An opinion not accompanied by such a factual recitation may, nevertheless, be "pure opinion" if it does not imply that it is based upon undisclosed facts (see, Ollman v. Evans, 750 F.2d 970, 976 [D.C.Cir.], cert. denied 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278; ***904 Buckley v. Littell, 539 F.2d 882, 893 [2d Cir.], cert. denied 429 U.S. 1062, 97 S.Ct. 785, 786, 50 L.Ed.2d 777; Restatement [Second] of Torts 566 comment c). When, however, the statement of opinion implies that it is based upon facts (*553) as it is clearly seen in this case, which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable (see, Hotchner v. Castillo-Puche, 551 F.2d 910, 913 [2d Cir.], cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95; cf. * 290 Cianci v. New Times Pub. Co., 639 F.2d 54, 64, 65 [2d Cir.]). [FN3] The actionable element of a "mixed opinion" is not the false opinion itself-it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v. New York Times Co., 75 A.D.2d 417, N.Y.S.2d 271; cf. Silsdorf v. Levine, 59 N.Y.2d 8, 14, 462 N.Y.S.2d 822, 449 N.E.2d 716, where the complaint alleged not only that the opinion was defamatory but that the accompanying recitation of facts upon which it was based was either a "gross distortion" or "misrepresentation of fact".) *17 "The rule as set forth in the Restatement (Second) of Torts 566 is as follows: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." The Court cannot know or intuit about the defendants-respondents doctors IME tests (66, 71, 72) written they performed (66,71,72) upon the plaintiff-appellant were supposedly subjected to, but in fact were not as such the perjury and misrepresented documents as filed with the Hearing Court by defendants council in case indexed 18186/01, its IME medical reports upon the plaintiffs injuries sustained are in fact actionable, for these very same reasons. Plaintiff-appellant states, for the both this Courts knowledge and convenience that "a Goniometric analyses" (66, 71, 72) consists of a test, or tests applied to a limb or body segment that one may move. Here in plaintiff-appellants case "a limb" a certain amount of motion measured in degrees angular from that limbs point of rest "origin" through a particular or its common movement, i.e., an arm flexes and extends (bends or straightens) either actively, i.e., by the person doing their motion on their own power, or "passively", i.e., by an examiner moving that limb through that motion common to that limb. *18 What adds to these contentions made by plaintiff-appellant that these are facts and opinions mixed and were deceptively applied by the defendants-respondents both in knowing and still using its hired (defendants) doctors performance of that shame IME by defendantsrespondents doctors, is added by the following facts, infra and within the context and body of point two as well. A taped-recording (308) of the plaintiff-appellants independent medical examination (66-72) was made, recorded by plaintiffs' present witness ( ) at that February 23rd, 2000 independent medical examination. Plaintiff-appellant contends both under the law and defendant's attempts

9 to conceal plaintiffs' injuries from the Hearing Court, especially so after notice by fax dated May 6th 2003 (308) sent defendant's council, and an injury to plaintiffs ankle ( ) sustained during that examination, such taped recording is admissible as direct and substantive evidence, "A recording is admissible as direct evidence of the conversation, not merely as corroboration of [the witness'] testimony." Case law also makes it quite clear that audio recordings are substantive evidence and have independent probative value. For example, in Searcy v Justice (1974) 20 NC App 559, 202 SE2d 314, cert den 285 NC 235, 204 SE2d 25 and appeal after remand 27 NC App 511, 219 SE2d 518, the court explicitly stated that audible and properly authenticated tape recordings may be used as substantive evidence and not merely to illustrate or corroborate the testimony of a witness." *19 "By current law, Audio recordings today "have almost universal approval as an acceptable form of evidence providing a proper foundation if first established for their admission." Thus, the "first requirement for introducing a tape recording is that a foundation must be laid demonstrating that the tape is authentic and correct." The term "foundation" refers to the preliminary questions asked of a witness in order to establish the admissibility of evidence. Before introducing any audio recording as evidence, the proponent must "lay a foundation," through a properly qualified witness, which addresses the elements of relevance, and authentication, and perhaps miscellaneous objections going to competence. "relevant evidence is simply defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action [that is, a material fact] more probable or less probable than it would be without the evidence." [FN86] With respect to audio recordings, the connection between materiality and relevance, is summed up as follows: "The recorded statement must have some tendency to prove or disprove a disputed fact that is of consequence to the determination of the action. This, of course, means that there must also be testimony identifying this particular recording as the specific one involved." Thus by plaintiff-appellants having submitted to the defendantsrespondents *20 council her sent fax of May 6th 2003, in lieu of initiating a greater more appropriate settlement as suggested by her own attorney (308) plaintiff-appellant contends is highly relevant evidence, was never challenged by the defendants-respondents at any time, or even acknowledged, and as such should stand unchallenged. Both as dispositive and substantive evidence fully and fairly in plaintiff-appellants favor. As such the lower Court decision should be reversed in its entirety and the IME report (65-76) made upon the plaintiff-appellant dated February 23rd 2003 should be completely stricken from the record and plaintiff granted her sought relief in case indexed 18186/01. *21 :POINT TWO: Plaintiff-appellant strongly points out to this Court perhaps what is most disturbing along with the shame IME (65-76) by defendantsrespondents used to make its summary dismissal at the Hearing Court level. Is that plaintiff-appellant had informed them (the defendantsrespondents own legal council) defendant-respondents in fact apprised of these facts May 6, of 2003 by plaintiffs sent fax (308) including plaintiffs witnesses transcription ( ), concerning defendant Aimee Lynn Associates hired physician's - Neystat and Emmanuel, Md.'s. Being that both defendants hired doctors had completely falsified that IME reports they had performed on plaintiff. As both Md.'s swearing

10 under oath CPLR section "under penalties of perjury." Which plaintiff sent to defendants Aimee Lynn Associates legal council (308) i.e., Squires, Cordrey, and Nobel, LLP. "it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v. New York Times Co., 75 A.D.2d 417, 422, 430 N.Y.S.2d 271; cf. Silsdorf v. Levine, 59 N.Y.2d 8, 14, 462 N.Y.S.2d 822, 449 N.E.2d 716, where the complaint alleged not only that the opinion was defamatory but that the accompanying recitation of facts upon which it was based was either a "gross distortion" or "misrepresentation of fact". *22 There plaintiff asking in her letter (308) faxed to defendants legal council to pass on plaintiffs accompanying witness's transcription, ( ) seen being signed and notarized (313) March 2003, to the defendant company - "Aimee Lynn Associates." As directed plaintiff by her attorney Edward Garnett, Esq., of the law firm of "Riconda & Garnett, LLP", to stimulate defendant to increase their settlement previously offered (265) in October 2003, and as response to the defendants April 14th, 2003 affirmation (29-33) seeking dismissal of plaintiffs action under CPLR Section Defendant-respondents by never responding, nor ever sought an EBT on plaintiffs witness, or made another IME of the plaintiff despite plaintiffs May 6th 2003 fax communication. Which would have presented no real hardship to defendants and was easily repaired. Plaintiff-appellant contends such Independent Medical Examination by Dr's Neystat and Emmanuel Md.'s that day in February 2003, should be stricken and bear no weight in plaintiffs case "18186/01" whatsoever and the lower Court should be reversed in its entirety. Plaintiff-appellant upon discovering her lawyer Mr. Edward Garnett, Esq., had not presented the hearing Court with this and other critical evidences plaintiff had timely supplied Garnett, Esq., with, immediately terminated him as plaintiffs attorney. Still by defendants nonresponsiveness along with outright repetitive use of perjured and tainted evidence, which plaintiff had contacted defendants about (308) in her May 6th 2003, fax, is plaintiff-appellants strongest contention plaintiffs fax was sent *23 to the defendants council (308) May 6th 2003, yet was by the defendants, never challenged. Nor, equally did defendants council seek or filed any interrogatories of plaintiffs witness. Plaintiff believes as such her taped recording as evidence has a proper foundation in that defendants had more then ample time to challenge plaintiff's evidence or plaintiff's witness. See: Roedl v Lane (1976, 3d Dist) 41 Ill App 3d 1062, 355 NE2d 354 (tape recordings that are otherwise competent, material, and relevant are admissible if a proper foundation has been established);); State v Warwick (1972) 158 Mont 531, 494 P2d 627 ("sound recordings are admissible in both civil and criminal cases where the recording is both material and relevant to the issues before the court and a proper foundation is laid"). Still would this Court decide not to allow the taped recording for whatever it basis its sagacity on, plaintiff-appellant states in the fact finding issue to determine if there exists any material fact in this case that plaintiff-appellant believes firmly the lower court in error bypassed, then plaintiff-appellant respectfully asks this court to consider the following legal argument in seeking this Courts allowance of her witness recording of defendants false and totally misrepresented IME (32-33, 65-66, 240). Tainted evidence ( ) the defendants knew was such, yet still used its perjured physicians reports of the required IME of plaintiff to make its case. Defendants-respondents by plaintiffs fax (308) sent them

11 should have known this as *24 fact; as such "a material fact" exists in this case, requiring a trial improper for the lower Courts summary judgement to stand. "it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v. New York Times Co., 75 A.D.2d 417, N.Y.S.2d 271; cf. Silsdorf v. Levine, 59 N.Y.2d 8, 14, 462 N.Y.S.2d 822, 449 N.E.2d 716, where the complaint alleged not only that the opinion was defamatory but that the accompanying recitation of facts upon which it was based was either a "gross distortion" or "misrepresentation of fact". Defendants-respondents have steadfastly maintained plaintiff in her automobile case indexed 18186/01 sustained "no serious injuries" within the meaning of Section 5102(d). Then describes in its motion to dismiss (29-33) defendants understanding of plaintiffs injuries (31) as nonserious, bypassing all the evidence before it based wholly upon its hired doctors IME lies, ( ) perjury and filing of false medical reports specifically designed to conceal plaintiffs serious and omitted (313) injuries i.e., Dr Emmanuel completely omitted plaintiffs pain and chewing disability via TMJ dysfunction, all from the eyes of the Hearing Court. Defendants while initially and probably unknowingly filing instruments of harm replete with injurious falsehoods, perjured medical reports used by defendants hired *25 Doctors (32) by its April 14th 2003 (28-33) dismissal motion. Still by defendants; plaintiff-appellant means to include here Aimee Lynn Associates and its legal council, sought return date May 16th 2003 (28) on defendant's dismissal (28-33). Plaintiffappellant strongly contends the defendants are fully culpable and guilty of intentionally, knowingly using perjury and false medical reports against plaintiff. For although defendants legal council Squires, Cordrery and Nobel, LLP., having plaintiffs witnesses (308, 313) notarized-march 25, transcription of the actual, real events and medical exam that defendants doctors did upon the plaintiff at that February 2003 IME (32-33, 65-66, 240). This both by plaintiffs witness "Cohen" and the time stamped tape-recorded sound recording demonstrating in reality what in truth and fact transpired at plaintiff IME supra, as obligated of plaintiff by defendants to attend. Still the Hearing Court was never apprised of that written notarized March 25th 2003 transcription, ( ) tape-recording (308) or the witnesses eye witness to plaintiffs IME (32-33, 65-66, 240) which in unknown error granted defendants sought (6-8,) dismissal, relying upon "Licari v. Elliot, 57 N.Y.2d 455, N.Y.S/2d 570 (1982)." Defendants after May 06, 2003 still used such known to be false medical reports of its cherished IME ( ). Further saying, "as no serious injury exists an action to recover for pain and suffering out of a motor vehicle accident will be dismissed." Lopez v. Senatore 65 N.Y.2d 1017, 494 N.Y.S.2d 1001 (1985); Licari v. Elliot, supra." *26 Plaintiff-appellant points out of amazing similarities to her case is the case which Licari v Elliot updates itself as holding steadfast is that of Thompson v. Abbasi, 788 N.Y.S 2d. 48, N.Y.A.D. (1st Dept. 2005) A case where as in plaintiff case two physicians filed affidavits concluding that, "although there were positive magnetic resonance imaging (MRI) findings of motorist's cervical spine following his collision with taxicab, he had normal range of motion in his cervical spine as well as his lumbosacral spine and wrists, together with motorist's bill of

12 particulars indicating that he missed only one week of work following the accident were sufficient to meet taxi company's initial burden that motorist did not sustain serious injury within meaning of the no-fault law." Here in plaintiff-appellants case although no supine MRI findings where seen, however both active and passive ranges of motion beyond the requirement under McKinney's Insurance Law 5102(d)., was in existence and real in plaintiff-appellants sustained injuries. That the defendants-respondents "Aimee Lynn Associates" hired physicians Emmanuel and Neystat Md.'s both intentionally perjured their sworn testimony and falsified their medical examinations reports, Neystat and Emmanuel submitting knowingly tainted evidence to the hearing Court, swearing plaintiff had no injuries and full ranges of motion upon testing plaintiff. This Court should note that even before this IME dated February 2000, plaintiff had a definitive history confirmed by multiple years of testing, radiological, bone *27 density and laboratory data showing plaintiffs incomplete ranges of motion and pain upon nearing those range limits. In fact plaintiffs Rheumatologist Dr. Peggy Garjian, Md. had also filed a completed Social Security Disability record of those limitations in passive and active motions, However by plaintiffappellants last office examination by Dr Garjian of August 3rd 2000, showing that plaintiff had improved to the point where she in fact had her physicians allowance and by regained abilities after so many years of suffering and pain. To now apply, and was accepted in September 2000 to "The New York Technical Colleges Architectural Design Program". Which after the vehicular accident of October 2000, abruptly came to an end. As such the lower Court decision should be reversed in its entirety and the IME report (65-76) made upon the plaintiff-appellant dated February 23rd 2003 should be completely stricken from the record and plaintiff granted her sought relief in case indexed 18186/01. *28 :POINT THREE: In addition to the points one and two above, and that defendantsrespondents knew or should have known had its own legal council shown plaintiffs fax (308) of her witnesses notarized transcription of ( ) that taped-recording of its IME (65-76); which plaintiff does in truth not knew if that is the case. Still plaintiff by injuries sustained by that October 21st 2000 automobile crash had met and exceeded the requirements of a serious injuries under the law. Plaintiff had prior damages, which effected her from having any normal full ranges in her joint motion, passively or actively. Even after being able to apply in late August of 2000 to the New York Technical Colleges Architectural Design Program. As defendants-respondents doctors so boldly, glibly cavalierly write in oath about plaintiff-appellant. Still plaintiff-appellants affidavits submitted even in so improper a form as in "a summary" by her Rheumatologist about her injuries. Still were above that required and fairly exceed that imposed upon plaintiffappellant by insurance law 5102(d). Supporting such as facts as plaintiff-appellant contends are the Workmen Compensation Board Judges report documenting plaintiffs permanent partial disability by record in Added to these facts is the confirmed-by-the-plaintiffs-appellants-eye-witness's transcription, which this Court should note was made well before any copy of that IME dated 2/23/03 was ever seen by the plaintiff herself! Or her attorney's *29 Riconda and Garnett, LLP. Most clearly demonstrate that in fact the defendants-respondents hired doctors Neystat and Emmanuel's committed more than perjury and lies, but actually falsification of two medical examinations, written into untrue and false reports designed to conceal plaintiffs true injuries. All used against plaintiff.

13 Factually plaintiff letter to the Architectural Program Instructors, as well as her Rheumatologist Dr. Peggy Garjian, Md. ( ) affidavit which is stated as a summary, one of years of laboratory, Radiological, blood and Goniometric, bone density testing and the resultant sequela of that vehicle accident dated October 21, 2000 to the plaintiffs ranges and life must be taken into account as factual and meeting the requirements under Section 5102(d), if not than this issue is in fact one of a issue of material fact and should be tried by a jury not dismissed by summary judgment which is improper. The Hearing Court had before it facts of a vehicle accident dated October 21, 2000, which presented no hardship for that court to have simply compared plaintiffs one and a half month prior office visit dated August 2000 showing plaintiff to have been much improved and able to go back into society and work for her living. This after ten plus years of suffering, and pain, along with prescribed therapies and medicines and now August 13th 2000 office exam notes of Dr. Peggy Garjian Md. able to pursue another (third) career. It is interesting to note by this Courts review of plaintiffs two other careers, one *30 as a state of New York Licensed Respiratory Therapist earning sixty thousand dollars per annum, which after an on the job accident the plaintiff no longer could work at. Did after two year of rests and therapies go back to pursue an additional career as a Computer Word Processor earnings at fifty-seven thousand dollars per annum. And by pain and suffering had to stop that additional second career which plaintiff herself had paid for and pursued! It is more then clear plaintiff is a hard working, bright and sophisticated individual with fine ethics and excellent morals. And as plaintiff-appellants habit is and was. Just as soon as able to, plaintiff-appellant would go back to get a career and pursue a livelihood as seen again and again. Plaintiff-appellant did in plainly seen by plaintiff-appellants August 13th, 2000 Rheumatologist office exam shows her registering and being accepted into "The New York City Technical Colleges Architectural Design Program" in September 14th, 2000! Despite plaintiff-appellant doing excellent academic work, one month later on October 21, 2000, plaintiff-appellant was sadly struck by defendants Aimee Lynn Associates truck, whose driver defendants-employee "Rafeal Nino," drove carelessly through a Red Light. Making a right hand turn at the Red Light, apparently believing New York States Vehicle law is equivalent to New Jersey Vehicle law. Defendants right rear truck struck plaintiffs (18) motionless car, adding and causing new and serious as well as severely exacerbating and adding injuries the plaintiff-appellant never had before. As such immediately stopping plaintiff from pursuing her new career (17). *31 Plaintiff believing she would be going back to her own physicians i.e., Rheumatologist Dr. Peggy Garjian, Md., which sadly plaintiff found over the next few weeks she could not subsequently had to go to a new doctor near plaintiff-appellants area, "Dr. Montas" who told plaintiff she had a concussion and was suffering a post concussion (20) syndrome i.e., dizziness, accentuated by Vertigo which plaintiff had never had in her life. Within one months time plaintiff back being bedridden, discovered her finger nodules, part of her Rheumatoid Arthritis syndrome which prior to the October 21, 2000 accident were insignificant and less then twenty percent of her fingers now were substantially bigger and newly encompassed over eighty percent of her fingers and therefore could hold no pen, pencil, hair comb, or toothbrush. Now plaintiff could no longer draw (17) nor use design tools as in the

14 program in Architectural Design at New York Technical College required, additionally had to hire someone to help clean. By these items alone plaintiff contends she has more then met the requirement of a serious injury under McKinney's Insurance Law 5102(d), in fact plaintiffappellant contends as well additionally under this very same Courts own standing decision seen in Trunk v. Spross, 306 A.D.2d 463 (N.Y. App. Div., 2003) On, "Serious injury (d)." "Serious injury," "meaning a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; *32 permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." Factually plaintiff-appellant contends under both these requirements i.e., Insurance Law 5102(d) and the 306 A.D.2d Court 463, decision, plaintiff-appellant contends she in fact has clearly met the meanings of serious injuries sustained, sadly. The lower Court erred in bypassing such exhibited data before it and summarily ruling. As such the lower Court decision should be reversed in its entirety and the IME report (65-76) made upon the plaintiff-appellant dated February 23rd 2003 should be completely stricken from the record and plaintiff granted her sought relief in case indexed 18186/01. *33 :POINT FOUR: Due to plaintiff-appellants own retained attorneys - Riconda & Arnett, L.L.P., incredible failings,(and defendants-respondents acts of intentional concealment and using misrepresented medical reports, see supra and infra) plaintiff-appellant contends and must that in reality and fact she had no legal council whatsoever in this case, and as such the Court should grant plaintiff-appellant allowance to correct her affidavits and bring to light the data which was omitted by sheer neglect both in legal procedure, proper responses bypassed critical evidence by council John Riconda, specifically Edward Garnett, LLP. Not only in failing to provide an allowance for an Appellate Courts review of plaintiffs critical issues, i.e., as plaintiffs witnesses taped recording, and the plaintiffs witnesses transcription ( ) and "eye witness throughout that falsified IME", and subsequent fax sent to the defendants (308) legal council (Squires, Cordrey and Nobel, LLP), all which plaintiff-appellants own attorneys never brought before the Court! Such data and evidence appraising defendant's legal council of their defendant "Aimee Lynn Associates" hired doctors "Emmanuel and Neystat, Md.'s," subjected plaintiff to a requested IME (65-77), in reality knowingly filed two false reports and documents sent by mail specifically made to conceal plaintiff-appellants true injuries. While it is established that council upon representing a client is responsible *34 and the client understands this when retaining council. In this case plaintiff-appellant contends this is beyond tolerance, or acceptance of the attorneys complete failures to represent and known misrepresented medical reports used. Which should be corrected by the Courts in the interest of justice and the facts that plaintiff has valid claims unheard and has more then met the standard of the required CPLR 5102(d) of the Insurance law. Her attorneys mistakes and gross negligence, (Seen in Tippins v Turben (1933) 162 Okla 136, 19 P2d 605, holding that the failure of the plaintiffs attorney to present his