2309 again – nothing different today

Donsimoni v Fall, 2017 NY Slip Op 07092 (1st Dept. 2017)

“The fact that plaintiff’s lone affidavit of merit in opposition to defendant’s summary judgment was acknowledged by a vice-consul in the U.S. Embassy in Paris, France, yet was submitted without a requisite certificate of conformity (see CPLR 2309[c]; Real Property Law § 301, et seq.), constituted an irregularity that could be corrected nunc pro tunc, if necessary (see DaSilva v KS Realty, L.P., 138 AD3d 619 [1st Dept 2016]; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612 [1st Dept 2017])….”

It is amazing that the Court actually countenanced the certificate of conformity argument in the first place.

2309 issue

American Cas. Co. of Reading, Pa. v Motivated Sec. Servs., Inc., 2017 NY Slip Op 01970 (1st Dept. 2017)

“The motion court properly considered the out-of-state affidavit of SBF’s president, even though it lacks a certificate of conformity (CPLR 2309[c]). The lack of such certification is not a fatal defect and the irregularity may be corrected later (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]; CPLR 2001).”

Another arbitrator and master arbitrator get shamed for not following the law

Global Liberty Ins. Co. v. Logic Chiropractic, P.C., (Sup. Bronx Co. 2016) Index #: 23560/2016E

I will say this again: Norman Dach’s passing was a bad day for the master arbitration program at AAA.  The master arbitration system was created to correct legal errors that arbitrators make.  Here is another rubber stamp that I must put on the egregious level.

For those following, the AAA case # is 411510086581.  Again, these Article 75 orders do not get sent to the appropriate parties like the master arbitration awards so nobody in the system is aware when AAA gets it wrong.

Here is the text of the order:

Global Liberty Insurance Co.’s petition to vacate the award of the master arbitrator pursuant to CPLR 7511 is granted, as the petitioner established that the decision of the master arbitrator, affirming the lower arbitrator, was arbitrary because it failed to consider the independent medical examination report of chiropractor Dr. Areil Goldin (see In re Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207 [1981]). As noted by the petitioner, the report should have been considered even though it was signed electronically and not notarized, because strict conformity with CPLR 2106 is not required under the no-fault regulations (Auto One Ins. Co. v. Hillside Chiropractic, P.C., 126 A.D.3d 423 [1st Dept. 2015]; 11NYCRR65-4.5[o][l] ).  Contrary to respondent’s contentions, this Court finds Auto One Ins. Co. v. Hillside Chiropractic, P. C., to be on point and controlling. The master arbitration award dated May 2, 2016 is hereby vacated, the matter is remanded for a new arbitration hearing before a different arbitrator, and the petitioner is entitled to costs and disbursements, including petitioner’s $325 master arbitration fee.

This Constitutes the Decision and Order of the Court

PL 210.45 verification is a sufficient affidavit

Gonzalez v Ayala, 2016 NY Slip Op 05626 (2d Dept. 2016)

“In support of their motion, the defendants submitted, inter alia, an affidavit from the defendant driver, and various witness statements verified pursuant to Law] Penal Law § 210.45, which presented conflicting evidence as to how the accident occurred, including a statement that the defendants’ vehicle “stop[ped] short at [a] green light [and] the motorcycle . . . had no time to stop or maneuver.”

In a state that still holds the affidavit so near and dear, I am amused when I see PL 210.45 statements sufficient to raise issues of fact.  They should allow everyone to make CPLR 2106 statements in this state.  We are so antiquated in that regard.

Judicial notice v. CPLR 4518(c)

Throgs Neck Multicare, P.C. v Mercury Cas. Co., 2016 NY Slip Op 51081(U)(App. Term 2d Dept, 2016)

Throgs Neck Multicare, P.C. v Mercury Cas. Co., 2016 NY Slip Op 51083(U)(App. Term 2d Dept. 2016)

I fell victim to 4518(c) and the case on point: Dyer v 930 Flushing, LLC, 118 AD3d 742 [2d Dept. 2014]).  Now that I see this case, I vaguely remember reading Dryer and shaking my head.  Perhaps I should have banged my head against something so I remembered that when I approved the Reply that went out.

The Court now shook its head at me.  The Dryer case found the DOS printouts from the NYS website are not admissible evidence unless certified. (By the way, certifying DOS records is really easy)  What is interesting is that judicial notice will be given to various items on governmental websites, so this case is the analogue of those cases.

I sense at some point, the 4518(c) v. Judicial notice cases will get a “Fontanetta v. Doe, 73 AD3d 78 (2d Dept. 2010)” type treatment and a more solid rule will be created.  As of now, I was on the losing end of this battle.

2106 and a prima facie comment

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co., 2016 NY Slip Op 50167(U)(App. Term 1st Dept. 2016)

(1) “The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106″

This is nothing new,

(2) “Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).”

Now in the Second Department, prima facie proof on motion for summary judgment requires a demonstration either (A) absence of a timely denial; or (B) affirmative proof disproving the proffered defense.

First Department precedent has maintained the traditional rule that proof that a bill was denied or not denied when more than 30-days elapses from submission with proof of non-payment establishes a prima facie case.

I sense in this case the Court required proof that the bills were unpaid in affidavit form.  Yet, a denial would presuppose lack of payment?

Familiar theme on experts and 2106

Lopez v Gramuglia, 2015 NY Slip Op 08068 (1st Dept. 2015)

Familiar lesson here.  An expert can generally opine about all areas of medicine.  The other lesson here is that a 2106 objection needs to be specific.

“At the outset, defendant’s expert affirmation was properly considered. Dr. Robbins, an orthopedist, was qualified to render an opinion as to the standard of care in podiatry, since a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field (see Fuller v Preis, 35 NY2d 425, 431-433 [1974]; and see Limmer v Rosenfeld, 92 AD3d 609 [1st Dept 2012]). Although, Dr. Robbins’ affirmation, which recited his credentials as including, inter alia, board certification as an orthopedic surgeon, and graduation from Columbia University College of Physicians and Surgeons, with the completion of a residency in New York City, did not specifically state that he was a “duly licensed physician,” or that he was “duly licensed in the State of New York” (see e.g. CPLR 2106), plaintiff failed to raise this argument before the motion court and, as such, it is unpreserved for appellate review (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [1st Dept 2003]; see also Scudera v Mahbubur, 299 AD2d 535 [2d Dept 2002]).”

Certificate of conformity waived

Todd v Green, 2014 NY Slip Op 08004 (2d Dept. 2014)

Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant. (shameless self promotion)

“The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.”

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, quoting Beaton v Transit Facility Corp., 14 AD3d 637, 637). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]; U.S. Bank N.A. v Poku, 118 AD3d 980U.S. Bank N.A. v Razon, 115 AD3d at 740; Dela Cruz v Keter Residence, LLC, 115 AD3d 700). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980). Although the Supreme Court [*2]found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121 AD3d 349; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960; Fredette v Town of Southampton, 95 AD3d 940, 942). Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf (see Midfirst Bank v Agho, 121 AD3d 349).

The moral of the story  is to take a stand when you think the Court is treating you like a no-fault defendant in Civil Kings, Special Term.  The appellate courts sometimes get it right.

Death knell to 2309(c)

Midfirst Bank v Agho, 2014 NY Slip Op 05778 (2d Dept. 2014)

“Our Court is observing a significant upswing in the number of appeals where the parties are contesting the admissibility of affidavits executed outside of the state, without CPLR 2309(c) certificates of conformity.”

(Supreme Court denied motion for leave to enter default due to failure to comply with CPLR 2309[c])

Held to comply with 2309(c)

“Mills’s affidavit was executed in the County of Oklahoma, State of Oklahoma, on September 20, 2012. The jurat reads:

State of Oklahoma

County of Oklahoma

Subscribed and sworn to (or affirmed) before me this 20th [sic] of September, 2012, by Josh Mills, [who] provided to me the basis of satisfactory evidence to be the person(s) who appeared before me.

Signature Mark R. Pitts (Notary Seal)

Notary Public”

The Notary Seal contained Pitts’s name and notary number, and the future expiration date of his notary license.

The affidavit and jurat were accompanied by a further document called a “Uniform, All Purpose Certificate of Acknowledgment.”

The Certificate of Acknowledgment read:


(Must sign in addition to Jurat if signed outside of New York State)

“State of Oklahoma

County of Oklahoma

On the 20th day of September in the year of 2012 before me, the undersigned, personally appeared Josh Mills, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed same in his/her/their capacity(ies) and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in Oklahoma City, Oklahoma (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).”

“The “certificate” required by CPLR 2309(c), commonly referred to in case law as a “certificate of conformity,” must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York (see Real Property Law § 299-a[1])”

“Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the “Uniform, All Purpose Certificate of Acknowledgment,” appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. The “Uniform, All Purpose Certificate of Acknowledgement” attested that the notary public, Mark R. Pitts, confirmed Josh Mills’s identity when Mills executed his affidavit in Pitts’ presence on the date the affidavit was executed, and was signed by Pitts alongside his notary seal. Moreover, since Mills’s signature upon the affidavit was acknowledged by a notary licensed in Oklahoma, no separate certificate of authentication was required (see Real Property Law §§ 299, 311[5]).”

The most important part of the opinion is here:

“Parenthetically, we note that even if the Mills affidavit was not accompanied by a certificate of conformity, the Appellate Division, Second Department, has typically held, since 1951, that the absence of a certificate of conformity is not, in and of itself, a fatal defect (see Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d at 680; Bey v Neuman, 100 AD3d at 582;Fredette v Town of Southampton, 95 AD3d at 941; Fallah v Stop & Shop Cos., Inc., 41 AD3d at 639; Smith v Allstate Ins. Co., 38 AD3d at 523; Raynor v Raynor, 279 App Div 671). The defect is not fatal, as it may be corrected nunc pro tunc (see U.S. Bank N.A. v Dellarmo, 94 AD3d 746), or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced (see Matos v Salem Truck Leasing,105 AD3d at 917; Rivers v Birnbaum, 105 AD3d at 44; Betz v Daniel Conti, Inc., 69 AD3d at 545). Thus, even if the certificate of conformity was inadequate or missing, no substantial right of the defendants is prejudiced. As they failed to oppose the plaintiff’s motion or raise the issue, it was inappropriate for the Supreme Court to, sua sponte, do so on the defendants’ behalf (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, _____ AD3d _____, 2014 NY Slip Op 02917 [2d Dept 2014]). ”


2309(c) – dead for now (maybe?) and the out of state insurer issue

At first, the Appellate Term said it was a fatal defect.  Then, they said it was a waivable defect.  After that it was held to be a defect that literally could cured nunc pro tunc through filing a new affidavit with the Civil Court clerk.  Now, it is deemed irrelevant.  Such is the sordid history of this provision of the CPLR.  What is noteworthy is that Second Department in 2014 for the first time I can remember held this to defect to be fatal.

Flatlands Med., P.C. v AAA Ins., 2014 NY Slip Op 24048 (App.. Term 2d Dept. 2014)

“At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001;Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2013]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; Bay Med. P.C. v GEICO Ins. Co., ___ Misc 3d ___, 2013 NY Slip Op 52084[U] [App Term, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.

See: Freedom Mtge. Corp. v Toro, 113 AD3d 815 (2d Dept. 2014)

“It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817 [2013]). However, the affidavit attesting to the debtor’s default in repaying the mortgage loan did not comply with CPLR 2309 (c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.”

Justice Solomon (who wrote the underlying Supreme court deicison) was in the App. Term panel)

As to the merits, the court held as follows:

“defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 [1986]).”

On this type of motion, this is what the affidavit has to state in order to shift the burden back to the medical provider/injured party.