January 14, 2010

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U))

https://www.beynensonlaw.com/case-law/eastern-star-acupuncture-p-c-v-clarendon-natl-ins-co-2010-ny-slip-op50043u/

Court: Appellate Term, First Department
Decided: January 14, 2010
Citation: 2010 NY Slip Op 50043(U) · 26 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Other

Cite as

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131(A), 2010 NY Slip Op 50043(U) (App Term, 1st Dept 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An out-of-state affidavit lacking the required certificate of conformity may receive nunc pro tunc effect once the certificate is obtained. The Appellate Term, First Department, conditionally reversed and granted the insurer summary judgment dismissing the no-fault complaint. The insurer's employee affidavit established entitlement to dismissal, but the providers timely objected that it lacked certification of a New Jersey oath under CPLR 2309 (c) and Real Property Law § 299-a (1). The insurer was required to file and serve an affidavit with the appropriate certificate within 60 days after service of the appellate order with notice of entry. If the insurer failed to comply, the order denying its motion would be affirmed.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U))

[*1]

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co.

2010 NY Slip Op 50043(U) [26 Misc 3d 131(A)]

Decided on January 14, 2010

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570686/09.

Eastern Star Acupuncture, P.C., a/a/o Charles Jeter, et al., Plaintiffs-Respondents, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, 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 (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: January 14, 2010

Cited by

A label shows how the later decision treated this one.

Ave T MPC Corp. v Amica Mut. Ins. Co. (2010 NY Slip Op 52009(U)) FollowedThe provider's action was premature because the insurer had received no claim forms before suit commenced.
Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. (2013 NY Slip Op 52014(U)) FollowedAn insurer's defective certificate of conformity for an out-of-state affidavit may be cured nunc pro tunc.
Golden Age Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52010(U)) FollowedThe insurer raised a triable issue as to whether the New Jersey policy was fraudulently obtained, subject to curing its affidavit.

Similar decisions

East-West Acupuncture v Safeco Ins. Co. of Ind. (2012 NY Slip Op 22095)An out-of-state affidavit's defective certificate of conformity may be cured later with nunc pro tunc effect.
Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.
Oriental World Acupuncture, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 52181(U))The insurer established that the provider's action was premature because requested verification remained outstanding when suit began.
J.O.V. Acupuncture, P.C. v Amex Assur. Co. (2017 NY Slip Op 50347(U))The insurer failed to establish proper and timely mailing of its denial through an affidavit from a nonparty's employee.
WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))The provider failed to establish its prima facie case because its owner's affidavit was unsigned and counsel's affirmation was insufficient.