American Transit Ins. Co. v. Casas Sosa, 2013 NY Slip Op 31588(u)(Singh, J)*My Case*
Plaintiff moved for leave to enter a default against the non-answering Defendants and for summary judgment against the answering Defendant. Appearing Defendant argued that the affidavits were insufficient. The Court shot down each of these arguments.
“Defendant, Yager, argues that Plaintiff has failed to provide proof in admissible form sufficient to eliminate all material issues of fact. Yager opines that the ”’affidavit’ of Ms. Hershman is defective and cannot serve to establish that a notice for physical examination was “mailed” because there is no recitation that the statements are made under penalty of perjury.”
“Defendant contends that, because the affirmation of Dr. Winell is undated, it is unclear that it was executed after the dates of the scheduled physical examinations. Defendant argues that, because Dr. Winell identified an office procedure and referred to his records and notes, his documentation and his written correspondence to Plaintiff should be in evidence and that without these documents Plaintiff cannot establish that there are no material issues of fact and the motion should be denied.”
“Defendant’s arguments are without merit. CPLR § 2309(b) provides that “An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs. “There is no specific form of oath required in this State” Collins v. AA Trucking Renting Corp., 209 A.D.2d 363 (1 st Dep’t 1994).”
“Ms. Hershman’s affidavit states that she was “duly sworn” and is notarized, with the notary reciting that the affidavit was “sworn to before me this 23rd day of October, 2012.” As such, her affidavit meets the requirement that an oath or affirmation be administered in a form calculated to awaken the conscience, and this Court takes notice of her affidavit.”
“As to the argument that it is unclear as to when Dr. Winell’s affidavit was executed relative to the scheduled dates of the physical examinations, this argument is unavailing. It is clear from the use of the past tense in the affidavit that it was executed after the dates of the scheduled examinations.”
“Regarding the argument that Dr. Winell is relying upon his office procedures, notes mid records and that these should therefore be produced, this argument is without merit. Dr. Winell clearly states that his affirmation is based upon personal knowledge. ”
“Yager further contends that Plaintiff did not properly provide Sosa’s attorney with notice of the physical examinations. However, there is no evidence that Sosa had an attorney at the time the notices were sent.” Note the court here places burden on medical provider/ EIP to raise an issue of fact regarding existence of attorney.”
“In conclusion, Plaintiff has provided evidence in admissible form sufficient to eliminate any question of fact. Plaintiff has shown that Mr. Sosa failed to appear for properly scheduled medical examinations, a condition president to payment of no-fault benefits to him or his assigns. Therefore, summary judgment is warranted. Plaintiff has further shown that the summons, complaint, and the present mot on were served upon each of the defendants.”
