March 31, 2010

RJ Professional Acupuncturist, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50579(U))

Headnote

The main issue in this case was whether the petition to vacate a master arbitrator's award, which upheld an arbitrator's award denying the petitioner's claim for assigned first-party no-fault benefits, should be granted. The court considered the fact that the papers submitted by the petitioner were insufficient on their face to warrant the granting of any relief, as the only document submitted in support of the petition was not properly affirmed under the penalties of perjury. The court held that the petition to vacate the master arbitrator's award should be denied without prejudice to renewal upon proper papers, as the document submitted by the petitioner was insufficient as an affirmation. Therefore, the order granting the petition to vacate the master arbitrator's award and directing the entry of judgment in favor of the petitioner was reversed.

Reported in New York Official Reports at RJ Professional Acupuncturist, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50579(U))

RJ Professional Acupuncturist, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50579(U)) [*1]

RJ Professional Acupuncturist, P.C. v Country Wide Ins. Co.

2010 NY Slip Op 50579(U) [27 Misc 3d 127(A)]

Decided on March 31, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2007-350 K C.

RJ Professional Acupuncturist, P.C. a/a/o FEING LI, Respondent,
against
Country Wide Insurance Company, Appellant.

Appeal from an order the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered December 1, 2006. The order granted a petition to vacate a master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

ORDERED that the order is reversed without costs and the petition to vacate the master arbitrator’s award is denied without prejudice to renewal upon proper papers.

RJ Professional Acupuncturist, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld an arbitrator’s award denying petitioner’s claim for assigned first-party no-fault benefits. The Civil Court
granted the petition, vacated the master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Med., 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]). The only document submitted by petitioner in support of the petition was one denominated an “Affirmation in Support.” The attorney who purportedly signed the document did not affirm the statements contained therein “to be true under the penalties of perjury” (CPLR 2106) but merely indicated that he “states as follows” (cf. 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]). Consequently, the document is insufficient as an affirmation (SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order [*2]is reversed and the petition to vacate the master arbitrator’s award is denied without
prejudice to renewal upon proper papers (see Matter of Sadler Textiles [Winston Uniform Corp.], 39 AD2d 845 [1972]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010