INTERIM DECISION Defendants both move to dismiss in their respective summary judgment motions, with opposition submitted thereto by the plaintiff. This action arises out of claims asserted by the Plaintiff Rosa Bautista, as parent and natural guardian of the infant plaintiff L.F. The plaintiff claims that L.F., who is severely disabled with profound intellectual disabilities secondary to infantile cerebral palsy and secondary diagnosis of hemiplegia and developmental coordination disorder, was injured by the defendant Ghaffar after he administered a session of physical therapy. Ms. Bautista claims that on May 2, 2014, during the course of physical therapy the defendant caused the infant to sustain a fractured femur. Annexed to the plaintiff’s opposition to these summary judgment motions are affidavits from the plaintiff, Rosa Bautista and her husband, witness Jomeini Garcia — the infant’s stepfather. In the case of the affidavits of Ms. Bautista and Mr. Garcia, these are in English, sworn to and signed by the deponents. Also annexed is a “statement” of another witness, Mariana Rodriguez, which is unsworn, not notarized and handwritten in Spanish by a former paralegal of the plaintiff’s law firm. As such, this document can not be considered by the court as an affidavit. Each of these affidavits, as well as the “statement”, are accompanied by another affidavit from an employee of the plaintiff’s attorney. In her affidavit of translation, Mercedes Guina sets forth that she is a paralegal for the attorney’s firm. She further states that she is “fluently bilingual in English and Spanish” and that she has 20 years of experience translating legal documents from English to Spanish and Spanish to English for the firm’s clients. In the case of the statement of Ms. Rodriguez there is also an additional affidavit of Alex Diaz who, as of the date of the affidavit, is a law graduate awaiting admission currently employed by another law firm. He indicates that he was employed by the plaintiff’s attorney when he interviewed and “took a written statement” from the witness, Mariana Rodriguez. He also states that on the date the statement was taken he, likewise, was fluently bilingual in English and Spanish. Thereafter, he relates that she signed the statement in his presence. Pursuant to CPLR §2101(b), each paper served or filed shall be in the English language. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his/her qualifications and that the translation is accurate. The court is concerned with the affidavits proffered by the plaintiff in opposition to the defendants’ summary judgment motions. In particular, the affidavits of Ms. Guina the translator, wherein she sets forth that she is “fluently bilingual” in English and Spanish, fails to establish her requisite qualifications to perform this important task: that is, translating facts as to what Ms. Rodriguez and Mr. Garcia witnessed regarding the alleged injury and translating the accounts of the subsequent action taken by the plaintiff herself. Indeed, such a characterization is ambiguous, self-serving and insufficient to illustrate her qualifications. Unlike the translators in National Puerto Rican Day Parade, Inc. v. Casa Publs., Inc., 79 A.D.3d 592 , (2nd Dept., 2010), who were found to be “qualified professionals”, Ms. Guina’s performance of this service for the plaintiff’s law firm for 20 years does not render her a qualified professional. Were she in that category, her services could have been utilized at the taking of depositions over this 20 year period and there is no such representation in her affidavit of translation. More importantly, however, her affidavits fail to satisfy that component of §2101(b) requiring her to state that the translations are accurate. As such, the court finds that this translator has failed to provide sufficient details with regard to her status as a qualified professional competent in both English and Spanish. Ultimately, the assembly or production of competent and reliable evidence can not be sacrificed at the expense of law office efficiency. In light of the cited authority the court found regarding the translations of affidavits and because this issue does not present mere technicalities but touches on the substance and reliability of the evidence presented on this summary judgment record, the court will take corrective action — in view of the fact that the defendants failed to raise this issue — in fairness to the parties. Accordingly, these motions will be held in abeyance pending receipt of affidavits of a translator whose qualifications comport with both statutory requirements and case law. This matter will be adjourned to this Court’s motion calendar on October 21st, at 9:30 a.m., room 401. This constitutes the decision and order of the Court Dated: September 26, 2019 Bronx, New York
