A signature placed at the direction of the signor

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 2012 NY Slip Op 50394(U)(App. Term 2d Dept. 2012)

Assuming one breaches the threshold issue of whether Plaintiff provided sufficient evidence to demonstrate that the signature was anything but holographic, the Court held that the peer report affidavit sufficiently made the proper showing that the signature was electronic and placed at the direction of the signor.

“While plaintiff also asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction”

Proof in opposition was insufficient to show a forgery

JPMorgan Chase Bank, N.A. v Bauer,  2012 NY Slip Op 00932 (2d Dept. 2012)

“[S]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature,” and Bauer’s “affidavit was alone inadequate to raise an issue of fact necessitating a trial” (Banco Popular N.A. v Victory Taxi Mgt., 1 NY3d 381, 384; see [*2]Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574).”

Progressive wins the Mr. Five Boro award today

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50151(U)(App. Term 2d Dept. 2012)

If it could go wrong it did.  There was probably no point of appealing this one.  Ask yourself this question: If you had to pay $1,500 to create a reproduced record, would you spend your client’s money on these facts?  The answer is probably obvious.

“However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.”

An affidavit really is not an affidavit

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 2011 NY Slip Op 21240 (App. Term 2d Dept. 2011)

“Plaintiff argues that the “affidavit” of its psychologist, submitted in opposition to defendant’s motion for summary judgment, was sufficient to raise a triable issue of fact. However, the “affidavit,” which contained a notary public’s stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public”

Well, the caption defect has to be rejected within two (2) days of receipt of the document.  The no attestation defect has to be objected to in the answering or reply papers, where appropriate.  Failure to properly object leads to the waiver of the objection.

The minimum that an affidavit must contain

Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (2d Dept. 2010)

“Here, Ching submitted an affidavit which recited that he was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document. On the record presented here, the form of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429; Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209 AD2d at 363).”

The affidavit at a minimum must say this: John Doe, DULY SWORN….

Sworn to before

notary public

[notary stamp]