January 29, 2010

WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))

Headnote

The main issue in this case was whether the provider had submitted sufficient evidence to establish a prima facie case to recover first-party no-fault benefits. The court considered the affirmation of the provider's counsel, an unsigned "affidavit" by the provider's owner, and various documents annexed to the motion for summary judgment. However, the court held that the unsigned "affidavit" did not constitute evidence in admissible form, and the affirmation of the provider's counsel was insufficient to establish the provider's prima facie case. As a result, the court affirmed the lower court's decision to deny the provider's motion for summary judgment. In summary, the court considered the evidence submitted by the provider to support their claim for first-party no-fault benefits. The main issue decided was whether the evidence presented was sufficient to establish a prima facie case. The holding of the case was that the unsigned "affidavit" and the affirmation of the provider's counsel were not enough to establish the provider's prima facie case, and therefore their motion for summary judgment was properly denied.

Reported in New York Official Reports at WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U))

WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co. (2010 NY Slip Op 50146(U)) [*1]

WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co.

2010 NY Slip Op 50146(U) [26 Misc 3d 135(A)]

Decided on January 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 29, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1518 K C.

WJJ Acupuncture, P.C. a/a/o MENDEL DAVIDOVICH, Appellant,
against
Liberty Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 28, 2007. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of plaintiff’s counsel, an “affidavit” by plaintiff’s owner which was unsigned, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant asserted that the “affidavit” of plaintiff’s owner was insufficient to establish plaintiff’s prima facie case. The Civil Court denied plaintiff’s motion on the ground that plaintiff had failed to submit an affidavit bearing the signature of the purported affiant. This appeal by plaintiff ensued.

Since the “affidavit” was not signed by the purported affiant, it did not constitute evidence in admissible form (see Hargrove v Baltic Estates, 278 AD2d 278 [2000]; Huntington Crescent Country Club v M & M Auto & Mar. Upholstery, 256 AD2d 551 [1998]; New Dorp Ch. 2712 of AARP, Inc. v A.A.W. Travel, Inc., 22 Misc 3d 141[A], 2009 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Comprehensive Mental Assessment & Med. Care v Merchants & Businessmen’s Mut. Ins. Co., 196 Misc 2d 134 [2003]). As the affirmation of plaintiff’s counsel was insufficient to establish plaintiff’s prima facie case (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010