June 12, 2008

SP Med., P.C. v Country-Wide Ins. Co. (2008 NY Slip Op 51230(U))


The court considered whether to grant a petition to vacate a master arbitrator's award which upheld the denial of a claim for reimbursement of first-party no-fault benefits. The main issue was whether the papers submitted by the petitioner were sufficient to warrant granting any relief. The court found that the petition was granted on the basis of insufficient evidence, as the affirmation submitted by the attorney for the petitioner was not in admissible form. The holding of the case was that the amended order to vacate the master arbitrator's award was reversed and the petition to vacate the award was denied due to the insufficient evidence provided by the petitioner.

Reported in New York Official Reports at SP Med., P.C. v Country-Wide Ins. Co. (2008 NY Slip Op 51230(U))

SP Med., P.C. v Country-Wide Ins. Co. (2008 NY Slip Op 51230(U)) [*1]
SP Med., P.C. v Country-Wide Ins. Co.
2008 NY Slip Op 51230(U) [20 Misc 3d 126(A)]
Decided on June 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2008



2007-211 K C.
SP Medical, P.C. a/a/o DONG SHENG ZHENG, Respondent,


Country-Wide Insurance Company, Appellant.

Appeal from an amended order of the Civil Court of the City of New York, Kings County (George J. Silver, J.) entered December 14, 2006. The amended order granted the petition to vacate a master arbitrator’s award and awarded petitioner the amount sought in the arbitration proceeding.

Amended order reversed without costs and petition to vacate the master arbitrator’s award denied.

SP Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim seeking reimbursement of assigned first-party no-fault benefits. By an amended order, the court granted the petition, and this appeal by the insurer ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief. The Civil Court, in its amended order, stated that its decision was predicated upon the notice of petition and affirmation, as well as the exhibits that were annexed thereto. Although there is sufficient authority which supports the proposition that an “affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form’, e.g. documents, transcripts” (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), such an affirmation was not present in this case.
Petitioner submitted a document that was denominated an “Affirmation in Support.” Said document contained the following statements:

“The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, states as follows: [*2]
Affirmant is associated with the firm of Gary Tsirelman P.C., the attorney of record for the Petitioner” (emphasis added).

The last page of the document contains the printed name of petitioner’s law firm, Gary Tsirelman, P.C., as attorneys for petitioner. It also contains a signature line with an indecipherable pen marking, which purports to be a person’s signature. Immediately below this “signature” is a listing of three printed names, each one next to a small box to be “checked off.” However, not one of the three listed names has been “checked off” on this document. In addition, the document was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who signed the document, if that be the case, merely indicates that he or she “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]). Consequently, there is no proof of the name of the attorney who generated the document, and the document is insufficient as an affirmation.

In view of the foregoing, the petition to vacate the master arbitrator’s award is denied. We do not reach the remaining contentions.
Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 12, 2008