The answer, unfortunately, is that too many practitioners fail to understand how to utilize and work with these statutes. It seems that in the field of no-fault and commercial debt collection, attorneys are forever mangling the application of these statutes.
Crossbridge Diagnostic Radiology v Encompass Ins., 2009 NY Slip Op 51415(U)(App. Term 2d Dept. 2009)
The above case, which was decided this week, demonstrates the special hazards that CPLR § 2309 presents. In fact, this case appears to be especially problematic for the insurance carrier since monies in excess of the no-fault policy limits are now due and owing because of an attorney’s misunderstanding of this statute. We learn this fact through Justice Golia’s thoughtful dissent.
The following quote from the Appellate Term says it all:
“However, the affidavit proffered by defendant, in which defendant’s claims representative asserted that the available coverage had been exhausted, was not in admissible form. Defendant’s affidavit was not in conformity with CPLR 2309 (c), which fact was duly objected to by plaintiff in the Civil Court”
Just remember that if you are executing an affirmation, executing an out of state affidavit or are in receipt of papers containing these documents, you should really be familiar with the procedural nuances of 2106 and 2309(c). The failure to appreciate the nuances of these statutes may lead to a deleterious and unfortunate result.
