October 27, 2008

Avanessov v State-Wide Ins. Co. (2008 NY Slip Op 52131(U))

Headnote

The relevant facts considered by the court were that Valentin Avanessov, Physician, P.C. had commenced a proceeding to vacate a master arbitrator's award which upheld the denial of its claim for assigned first-party no-fault benefits. The court found that the papers submitted by the petitioner were insufficient to warrant the granting of any relief. The main issue decided was whether the document submitted by the petitioner was sufficient as an affirmation to support the petition to vacate the master arbitrator's award. The holding of the court was that the order granting the petition to vacate the master arbitrator's award was reversed, the petition was denied, and the matter was remanded to the court below for the entry of a judgment confirming the master arbitrator's award.

Reported in New York Official Reports at Avanessov v State-Wide Ins. Co. (2008 NY Slip Op 52131(U))

Avanessov v State-Wide Ins. Co. (2008 NY Slip Op 52131(U)) [*1]

Avanessov v State-Wide Ins. Co.

2008 NY Slip Op 52131(U) [21 Misc 3d 132(A)]

Decided on October 27, 2008

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1777 K C.

Valentin Avanessov, PHYSICIAN, P.C. a/a/o AZRA SABOVIC, Respondent,
against
State-Wide Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered September 28, 2007. The order granted a petition to vacate a master arbitrator’s award.

Order reversed, without costs, petition to vacate the master arbitrator’s award denied, and matter remanded to the court below for the entry of a judgment confirming the master arbitrator’s award.

Valentin Avanessov, Physician, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The court granted the petition and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an “Affirmation in Support.” The only document submitted in support of the petition was one which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he “states as follows,” which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).

In view of the foregoing, the petition to vacate the master arbitrator’s award should have [*2]been denied. Furthermore, upon denying the petition, the court is required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). While we do not reach the remaining contentions, we note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008