July 7, 2011

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co. (2011 NY Slip Op 21240)

Headnote

The case involved a dispute over whether a provider was entitled to recover assigned first-party no-fault benefits for services rendered. The provider appealed from an order of the Civil Court that granted the insurance company's motion for summary judgment to the extent of dismissing the provider's claim for services rendered on specific dates in October and November. The main issue in the case was whether the provider's affidavit, submitted in opposition to the insurance company's motion, was sufficient to raise a triable issue of fact. The court found that the affidavit failed to meet the requirements of CPLR 2309 (b) as it did not contain the necessary statutorily prescribed form of oath, and it affirmed the judgment in favor of the insurance company, dismissing the provider's claim for the specified services.

Reported in New York Official Reports at New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co. (2011 NY Slip Op 21240)

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co.

2011 NY Slip Op 21240 [2011 N.Y. Slip Op. 21240]

Accepted for Miscellaneous Reports Publication

AT2

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

As corrected through Wednesday, October 5, 2011

[*1]

New Millennium Psychological Services, P.C., as Assignee of Christine Waters, Appellant,
v
Unitrin Advantage Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, July 7, 2011

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Gullo & Associates, LLP, Brooklyn (Cristina Carollo of counsel), for respondent.

{**2011 N.Y. Slip Op. at 1} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court entered January 8, 2010 as granted defendant’s motion for summary judgment to the extent of dismissing plaintiff’s claim for services rendered on October 30, 2007 and November 13, 2007, in the total sum of $1,026.51. A judgment dismissing that claim was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff argues that the “affidavit” of its psychologist, submitted in opposition to defendant’s motion for summary judgment, was sufficient to raise a triable issue of fact. However, the “affidavit,” which contained a notary public’s stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public (cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). While there is no specific form of oath required in New York (see General Construction Law § 36), an oath is to be “calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [or her] religious or ethical beliefs” (CPLR 2309 [b]). We find that inasmuch as the omissions in plaintiff’s submission constituted more than a mere defect in form, plaintiff’s “affidavit” failed to meet the requirements of CPLR 2309 (b).

Accordingly, the judgment is affirmed.

Steinhardt, J.P., Golia and Rios, JJ., concur.{**2011 N.Y. Slip Op. at 2}