Michigan Court of Appeals; Docket No. 73900; Published
Judges Maher, Hood, and Martin; Unanimous; Per Curiam
Official Michigan Reporter Citation: 138 Mich App 819; Link to Opinion 
STATUTORY INDEXING:
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion the Court of Appeals held that a motion by defendant for summary judgment on the threshold issue of serious impairment of body function should not have been granted where the motion was not supported by a proper affidavit under GCR117.3, 116.4 and 116.6. In this case, defense counsel supported his Cassidy motion with a memorandum and an attached affidavit attesting to the truth and accuracy of the motion. In declaring this procedure improper, the Court stated, "an affidavit signed by counsel that states only that the content of the motion is true to his or her knowledge and belief is, therefore, legally insufficient. However, when the material facts essential to justify the movant's position are known only to persons whose affidavits cannot be procured by the movant, an alternative form of affidavit is allowed. This affidavit must name the unavailable affiant and state why there testimony cannot be procured, together with a belief and reasons therefore as to the nature of their probable testimony. . . . In this case, a proper affidavit would have specifically directed the trial court's attention to that part of [plaintiff’s] deposition testimony that supported defendant's argument Also, the affidavit should have directed the trial court's attention to anticipated medical testimony. We note that none of [plaintiff’s] attending physicians were deposed nor apparently had plaintiffs nor defendant submitted any of [plaintiff’s] medical records to the court"
