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”.
