The trap called 2106

This is the fourth time I think someone got hit by Mercury – I meant me – on this issue.

High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 51900(U)(App. Term 2d Dept. 2010)

“In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Nihamin. In its reply papers, defendant objected to said affirmation on the ground that the affirmation failed to comply with CPLR 2106. Although the Civil Court found that defendant had failed to prove that Dr. Nihamin was plaintiff’s principal, the claim form submitted to defendant by plaintiff identified Dr. Nihamin as plaintiff’s principal. As a result, the submission of Dr. Nihamin’s affirmation was improper because Dr. Nihamin is a principal of plaintiff [*2]professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”

To answer the question at NFP, when in doubt between using an “affirmation” or”affidavit”, you should choose an “affidavit”.

The First Department’s newest inconsistent position on 2309

Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (1st Dept. 2010)

“The affidavit of plaintiff’s witness, purportedly sworn to in the Dominican Republic, lacks the certificate of conformity (Real Property Law § 301-a) required by CPLR 2309(c), and therefore is not properly before the Court (see Matter of Elizabeth R.E. v Doundley A.E., 44 AD3d 332 [2007]).”

There is no set rule regarding the consequence for failing to obtain a certificate of conformity.  It seems to be up to the panel at the appropriate appellate court to determine, ad hoc, whether the affidavit will be accepted.  Sometimes the defect is excusable, sometimes it is not.  Sometimes the defect may be cured later on, sometimes it may not.  I cannot give an accurate description of the law on this topic.  All I can say is that make sure you obtain a certficiate of conformity for out of state affidavits.  There is no reason to be stuck playing Russian roulette, in determining whether the affidavit, at the end of the day, will be accepted.

The First Department's newest inconsistent position on 2309

Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (1st Dept. 2010)

“The affidavit of plaintiff’s witness, purportedly sworn to in the Dominican Republic, lacks the certificate of conformity (Real Property Law § 301-a) required by CPLR 2309(c), and therefore is not properly before the Court (see Matter of Elizabeth R.E. v Doundley A.E., 44 AD3d 332 [2007]).”

There is no set rule regarding the consequence for failing to obtain a certificate of conformity.  It seems to be up to the panel at the appropriate appellate court to determine, ad hoc, whether the affidavit will be accepted.  Sometimes the defect is excusable, sometimes it is not.  Sometimes the defect may be cured later on, sometimes it may not.  I cannot give an accurate description of the law on this topic.  All I can say is that make sure you obtain a certficiate of conformity for out of state affidavits.  There is no reason to be stuck playing Russian roulette, in determining whether the affidavit, at the end of the day, will be accepted.

And this is why computerized range of motion testing is medically necessary – yet, not admissible.

Furthermore, the computerized range-of-motion tests referred to in Dr. Dudelzak’s affirmations were not in admissible form because they were not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without admissible evidence of quantified range-of-motion limitations contemporaneous with the accident, the plaintiffs could not have established the duration of the injuries required to raise a triable issue of fact as to whether they sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault law (see Kuchero v Tabachnikov, 54 AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).”

The computerized range of motion testing is medically necessary because it is instrumental in meeting the serious injury threshold of the Insurance Law.  It was not admissible, however, because it was not properly affirmed.

Another provider fell into the 2106 trap

Another owner of a medical facility, who improperly used the affirmation device, succumbed to Defendant’s summary judgment motion based upon the medical necessity defense.

Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50384(U)(App. Term 2d Dept. 2010)

“In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, [*2]265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]).”

The appellate term first department's take on 2309

“Motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs. The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above

Note that under the rule of the Appellate Term, Second Department, there would not be a second chance to cure the 2309(c) defect.  See, Crossbridge Diagnostic Radiology, P.C. v. Encompass Ins. Co., 24 Misc.3d 134(A)(App. Term 2d Dept. 2009).  Also, note my proposed solution to this issue and see how close the court came to it.  Finally, look at the most recent Appellate Division, Second Department case on point.

The appellate term first department’s take on 2309

“Motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs. The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above

Note that under the rule of the Appellate Term, Second Department, there would not be a second chance to cure the 2309(c) defect.  See, Crossbridge Diagnostic Radiology, P.C. v. Encompass Ins. Co., 24 Misc.3d 134(A)(App. Term 2d Dept. 2009).  Also, note my proposed solution to this issue and see how close the court came to it.  Finally, look at the most recent Appellate Division, Second Department case on point.

2309 yet again – from the Appellate Division, Second Department

Betz v Daniel Conti, Inc., 2010 NY Slip Op 00086 (2d Dept. 2010)

“Although the affidavit of the defendants’ expert, which was notarized outside the state, failed to conform to the requirements set forth in CPLR 2309(c), contrary to the Supreme Court’s determination, such defect was not fatal, as the plaintiff was not prejudiced thereby ( see CPLR 2001; Smith v. Allstate Ins. Co., 38 AD3d 522; see also Falah v. Stop & Shop Cos., Inc., 41 AD3d 638).

I am trying to find out if the plaintiff in his opposition papers objected to Defendant’s violation of CPLR 2309(c).  I checked the court’s website to see if the underlying order was available online, either in .html or .pdf format.  Much to my dismay, it is nowhere to be found.  Would someone who appears in Supreme Suffolk or Suffolk County Court be willing to pull this order and email it to me?  The index # is:  17202/06.  If there is no mention in the order as to whether Plaintiff objected to the improper attestation, would you be able to go through plaintiff’s opposition papers to see if he objected?

CPLR 2309 and the ability to submit new evidence in a reply

The Courts seem to be all over the place with the certificate of conformity requirement for out of state affidavits found in CPLR 2309.  This statute serves no purpose in 21st century commerce and should be shelved with the common law demurrer and the serve and file system of commencing actions.  Yet, it lives on and another case is dedicated to this antiquated statute.

In Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 2009 NY Slip Op 09713 (1st Dept. 2009), the Appellate Division held the following:

“Defendant has not preserved its argument that the foreign affidavits were invalid for lack of the certification required by CPLR 2309(c) and Real Property Law § 299-a. In any event, the courts are not rigid about this requirement. As long as the oath is duly given, authentication of the oathgiver’s authority can be secured later, and given nunc pro tunc effect if necessary (see Siegel, Practice Commentary, McKinney’s Cons Laws of NY, CPLR 2309:3). The absence of such a certificate is a mere irregularity, and not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).”

I read this case for the proposition that the failure to secure a 2309 certification should allow a case to be adjudicated on the merits, provided the certification is obtained within a time period following the decision.

Here is how I would see a decretal paragraph on a plaintiff’s motion for summary judgment that is based upon an affidavit that does not contain the 2309 certificate language:

“It is ordered that Plaintiff’s motion for summary judgment is granted and the clerk is directed to enter judgment in the sum of  XXXX, with execution stayed for 30-days from the service of this order with notice of entry, for Plaintiff to provide a certificate of conformity to this  court.  Should Plaintiff fail to provide a certificate of conformity within 30-days from the service of this order with notice of entry, then Plaintiff’s motion for summary judgment is denied.”

The second issue here involves the use of a reply to introduce new evidence or arguments when the opposing party does not get to have the last say on the motion.

“Plaintiff demonstrated it was a holder of the subject notes, and had a capacity to sue thereunder. Defendant failed to demonstrate a genuine defense to the notes. The notes were made payable to a Delaware corporation that later merged with another Delaware corporation, which in turn assigned to plaintiff its rights to the notes. The surviving corporation had the power to make that assignment (see Business Corporation Law § 906[b]; 8 Del Code Ann § 259[a]).

In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]).”

Dave Gottlieb in CPLR land discusses this case.

The failure to place evidence in proper form cannot be cured in a “supplemental opposition”

“The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin’s lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin’s cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The “Final Narrative” medical report of Dr. Jerome L. Greenberg, McMullin’s chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg’s affidavit, along with the “Final Narrative” report, in a surreply entitled, “Supplemental Affirmation in Opposition.” This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804).”