[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 4, 2012

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**35 Misc 3d at 51} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on condition that, within 60 days, defendant serve and file the moving affidavit of Marcy Gonzalez, accompanied by a certificate of conformity in compliance with CPLR 2309 (c).

Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant’s procedures for mailing EUO scheduling letters and denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to defendant’s motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant’s claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff’s remaining contentions lack merit.{**35 Misc 3d at 52} [*2]

Accordingly, the order conditionally granting defendant’s motion for summary judgment is affirmed.

We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.

Pesce, P.J., Weston and Rios, JJ., concur.

Supreme Court, Nassau County

4399-10

Attorneys for Plaintiffs- McDonnell & Adels, PLLC, 401 Franklin Avenue, Garden City, NY 11530

and Rivkin Radler LLP, 926 RXR Plaza, Uniondale, NY 11556

Attorneys for Defendants- The Zuppa Frim, PLLC, 53 Herbert Street, Brooklyn, NY 11222

Steven M. Jaeger, J.

The following papers read on this motion: [*2]

Notice of Motion, Affirmation, and ExhibitsX

Affirmation in Opposition and ExhibitsX

Memorandum of Law on Behalf of Defendants in OppositionX

Reply Memorandum of LawX

Memorandum of LawX

Motion by plaintiff for judgment pursuant to CPLR 3211(a)(7) dismissing defendants’ second, third, fourth, fifth and sixth counterclaims as alleged in defendants’ [Second] Amended Answer and Counterclaims is granted, with prejudice as to the second, third, fifth, and sixth counterclaims, and without prejudice as to the fourth counterclaim. The first cause of action for breach of contract is severed and continued.

In 2010 plaintiff commenced this action for a declaratory judgment and to recover no-fault payments made to the defendant professional corporations. Defendants asserted six counterclaims in their amended answer. Plaintiff previously sought dismissal of five of the counterclaims, and on that motion this Court directed defendants to serve a second amended answer and counterclaims in compliance with statutory pleading requirements (Order dated August 10, 2011, annexed as Exhibit E to plaintiff’s moving papers).

Plaintiff now seeks dismissal of the same five counterclaims for consequential damages, common law fraud, violation of General Business Law ｧ349, punitive damages, and violation of Judiciary Law ｧ487, as alleged in the [Second] Amended Answer and Counterclaims. Plaintiff contends that defendants’ only sustainable cause of action is for breach of contract based upon State Farm’s allegedly improper failure to pay no-fault benefits.

3211 Dismissal Standard

On a motion to dismiss pursuant to CLR 3211, the facts as alleged must be accepted as true, the pleader must be accorded the benefit of every favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable theory (Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; Arnav Industries, Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 303 [2001]). The criterion on a motion pursuant to CPLR 3211(a)(7) is whether the pleader has a cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Discussion

At the outset the Court notes for the record that defendants’ [Second] [*3]Amended Answer and Counterclaims is 79 pages long and contains 528 paragraphs, as compared to the Amended Answer and Counterclaims which was 172 pages long and contained 981 paragraphs. While this second amended pleading is shorter, it still suffers from “a mass of verbiage and superfluous matter” (Tankoos v Conford Realty Co., 248 AD 614 [2nd Dept 1936]). Nevertheless the Court will review the [Second] Amended Answer and Counterclaims pursuant to the dismissal standard of CPLR 3211(a)(7), to determine if defendants have a cause of action against plaintiff, other than one for breach of contract.

Fraud

The third counterclaim purports to allege a cause of action for common law fraud. Defendants allege that State Farm promised pre-accident policy holders, and by extension the defendants, that it would pay up to $50,000 per eligible injured person (EIP), that these promises were false, and that policy holders purchased insurance from State Farm in reliance upon these false promises. Post-accident misrepresentations included that State Farm would fairly adjust the EIPs’ claims, and timely pay all legitimate claims, and in reliance thereon, the defendants accepted the assignment of claims from EIP assignors who were State Farm policy holders. The post-accident representations include the alleged “predetermined” Independent Medical Examinations (“IMEs”), the alleged use of “fraud mills,” the alleged improper Peer Review Reports, alleged “sham investigations by legally unqualified investigators,” alleged improper use of Examinations Under Oath, alleged routine denial of proper claims, and alleged false and deceptive litigation practices.

A tort obligation is a duty imposed by law to avoid causing injury to others (New York University v Continental Ins. Co., 87 NY2d 308, 316 [1995]). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389 [1987]; Yenrab, Inc v 794 Linden Realty LLC, 68 AD3d 755 [2nd Dept 2009]; Heffez v L & G General Const. Inc., 56 AD3d 526 [2nd Dept 2008]). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (Clark-Fitzpatrick, Inc. at 389). Furthermore, the allegation that a party entered into a contract while lacking the intent to perform is insufficient to state a cause of action for fraud (Dune Deck Owners Corp v Liggett, 85 AD3d 1093 [2nd Dept 2011]; Stangel v Chen, 74 AD3d 1050 [2nd Dept 2010]).

Here, both the alleged pre-accident promises and post-accident [*4]misrepresentations arise out of the State Farm’s contractual obligation to honor its policies and make no-fault payments as required by the no-fault regulations. No separate obligation or tort duty to pay no-fault claims exists. On this record defendants have no cause of action against State Farm for fraud, and accordingly dismissal of the third cause of action for common law fraud must be granted.

General Business Law ｧ349

In the fourth counterclaim defendants allege that State Farm has committed multiple violations of General Business Law ｧ349. This statute declares as unlawful “[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24 [1995]). To state a claim under this statute a pleader must allege (1) acts or practices that are “consumer oriented,” (2) that such acts or practices are misleading in a material way, and (3) that the pleader has suffered actual harm by reason of those acts (Gaidon v Guardian Life Ins Co of America, 94 NY2d 330, 344 [1999]). Conduct is “consumer oriented” if it has “a broader impact on consumers at large” and may “potentially affect similarly situated consumers” (Oswego at pp. 25-26).

Here, defendants allege that State Farm has used inaccurate and false information to improperly delay and deny claims, that such conduct is “likely to mislead a reasonable consumer in the Acupuncture PCs’ circumstances,” that consumers at large have been injured by such practices, and that such practices have caused actual harm to the Acupuncture PCs and the public in general (see [Second] Amended Answer and Counterclaims, pars. 505-510). The problem with this pleading is that defendants’ injury is indirect or derivative of that suffered by policy holders whose claims were allegedly delayed or denied, and therefore it appears that defendants lack standing to assert this ｧ349 claim.

An injury is indirect or derivative when the loss arises solely as a result of injuries sustained by another party (Blue Cross & Blue Shield of NJ Inc v Philip Morris USA Inc., 3 NY3d 200, 207 [2004]). If a pleader could avoid the derivative injury bar by merely alleging that its suit would somehow benefit the public, then the “tidal wave of litigation” guarded against in Oswego (85 NY2d at 26) “would loom ominously on the horizon” (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 623 [2009]). Where, as here, the claimed injury arises wholly as a result of injury to others, and the pleader “is only secondarily damaged” (MVB Collision Inc v Progressive Ins. Co., 2010 WL 3617134 (Sup Ct, Nassau Cty, 2010)), the claimed injury is not compensable under ｧ349.

Defendants attempt to clear the standing hurdle by asserting that they are [*5]assignees of the policy holders whose claims were allegedly delayed or denied, and that as assignees, they stand in the shoes of the assignors ([Second] Amended Answer and Counterclaims, par.16). However the assignment of contractual claims does not automatically entail the right to assert tort claims arising from the contract (Banque Arabe et Internationale D’Investissement v Maryland Nat. Bank, 57 F3d 146, 151 [2d Cir 1995]; State of Ca. Public Employees’ Retirement Sys v Shearman & Sterling, 95 NY2d 427 [2000]; Fox v Hirschfeld, 157 App Div 364 [1st Dept 1913]). Assignments of rights under the no-fault law generally encompass the right of the assignee to sue for payment of the benefits provided tothe assignor. Whether such an assignment includes additional rights depends, inter alia, on the language of the assignment instrument, which has not been submitted to this Court. Under these circumstances dismissal of the fourth counterclaim for violation of General Business Law ｧ349 is granted without prejudice (see State Farm Mut. Auto. Ins Co. v Mallela, 175 F Supp 2d 401 [EDNY 2001]).

Judiciary Law ｧ487

Judiciary Law ｧ487, which governs misconduct by attorneys, provides for the recovery of treble damages from an attorney who is guilty of deceit or collusion, or an alleged chronic, extreme pattern of legal delinquency (Rock City Sound , Inc v Bashian & Farber, LLP, 74 AD3d 1168, 1172 [2nd Dept 2010], lv app dsmd 16 NY3d 826 [2011]; Izko v Sportswear Co, Inc, v Flaum, 25 AD3d 534, 537 [2nd Dept 2006]). This statutory cause of action is only applicable to attorneys and cannot extend derivative liability to a client (Yalkowsky v Century Apts. Assoc., 215 AD2d 214 [1st Dept 1995]).

Defendants’ sixth counterclaim for violation of Judiciary Law ｧ487 is based upon the allegation that State Farm’s General Counsel ratified and encouraged the submission of fraudulent affidavits in litigation involving defendants ([Second] Amended Answer and Counterclaims, par. 521). This does not suffice as a basis for a claim pursuant to Judiciary Law ｧ487 against State Farm, and the sixth counterclaim is summarily dismissed.

Consequential Damages

In the second counterclaim defendants seek consequential damages based upon “State Farm’s multiple breaches of contract” ([Second] Amended Answer and Counterclaims, par. 464). They seek damages for the loss of defendant Anikeyeva’s business, allegedly caused by the State Farm’s failure to pay no-fault benefits under its policies.

Consequential damages are recoverable for breach of contract in limited [*6]circumstances, where such damages were within the contemplation of the parties as the probable result of a breach at the time of, or prior to, contracting (Bi-Economy Market, Inc v Harleysville Ins Co of New York, 10 NY3d 187, 192 [2008], citing Kenford Co v County of Erie, 73 NY2d 312, 319 [1989]). Defendants were not yet on the scene at the time that the subject insurance policies were issued by State Farm to its policy holders. Therefore, there could have been no contemplation of defendants’ consequential damages at the time the policies were issued. In short, defendants simply have no cause of action for consequential damages based upon the allegations of State Farm’s multiple breaches of contract. Accordingly dismissal of the second counterclaim for consequential damages must be granted.

Punitive Damages

The fifth counterclaim purports to allege a cause of action for punitive damages, based upon State Farm’s “far reaching pattern of false, deceptive and fraudulent conduct,” which “has harmed and will continue to harm, the public at large” ([Second Amended Answer and Counterclaims, par. 515).

New York does not recognize an independent cause of action for punitive damages (Rocanova v. Equitable Life Assur. Society. of U.S., 83 NY2d 603, 616, [1994]; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612 [2nd Dept 2012]). Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights (Rocanova at 613). Punitive damages are available where the conduct constituting or associated with the breach of contract is (1) actionable as an independent tort for which compensatory damages are ordinarily available, and (2) sufficiently egregious to warrant the additional imposition of exemplary damages (Rocanova at 613).

On this record defendants do not have an independent tort claim against State Farm, and for this reason there is no need for the Court to address the egregiousness of the alleged conduct by State Farm. Dismissal of the fifth counterclaim for punitive damages must be granted.

It is so Ordered.

Dated: March 13, 2012

__________________________________________

STEVEN M. JAEGER, A.J.S.C.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 2, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**36 Misc 3d at 42} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

This action by providers to recover assigned first-party no-fault benefits was “marked off” the trial calendar on September 25, 2009. On May 26, 2010, plaintiffs moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In a supporting affirmation, plaintiffs’ counsel stated that plaintiffs were “prepared to proceed to trial, and . . . to present proof . . . that payment of no-fault benefits [was] overdue.” In opposition, defense counsel argued that prosecution of the claims of plaintiff Painless Medical, P.C. could not be pursued because Dr. Ronald Collins, the sole shareholder, officer and director of Painless Medical, P.C., had passed away on September 15, 2008, and Anna Val, Esq., who had been appointed as the administrator of the estate of Dr. Collins on September 9, 2009, had no authority over Painless Medical, P.C. Defendant argued, among other [*2]things, that Ms. Val lacked the capacity to administer or become a shareholder of Painless Medical, P.C. because she did not possess a license to practice medicine, which is a requirement of Business Corporation Law §§ 1507 and 1508, and, therefore, she was not entitled to pursue pending litigation or collect settlements and judgments involving this provider.

“[A] corporation can act only through its officers and agents” (14A NY Jur 2d, Business Relationships § 627; see also 14A NY Jur 2d, Business Relationships § 614). Upon Dr. Collins’ death, Painless Medical, P.C. continued to exist (see Business Corporation Law § 1510), but was powerless to continue prosecuting its claims in this action until there was someone with authority who could authorize proceeding with this litigation (see Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). After her appointment by the Surrogate’s Court to act as the administrator of Dr. Collins’ estate, Ms. Val had the authority and power to, among other things, recover property belonging to Dr. Collins’ estate, prosecute an action to recover assets belonging to the estate, and settle claims for money owed to the estate (see e.g. 38 NY Jur 2d, Decedents’ Estates §§ 1442, 1513, 1521, 1532). It was not necessary that she be a member of the profession in which the professional corporation is authorized to practice, because Ms. Val was not acting in a professional capacity, i.e., as a director{**36 Misc 3d at 43} or officer of the professional corporation, but rather as an administrator, whose role is to preserve the value of, and prevent loss to, the estate.

The motion to restore was made within one year after the action had been “marked off” the trial calendar, and counsel’s supporting affirmation satisfactorily explained the reason that the action was “marked off” and showed a readiness to proceed to trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 29, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty, P.C., Bethpage (Kevin R. Glynn of counsel), for appellant.

{**35 Misc 3d at 70} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion.

A provider is required to submit proof of claim to the insurer “in no event later than 45 days after the date services are rendered” unless the insurer has been provided with “clear and reasonable justification for the failure to comply with such time limitation” (Insurance Department Regulations [11 {**35 Misc 3d at 71}NYCRR] § 65-1.1). Plaintiff’s billing manager alleged that he had [*2]personally mailed a claim form (which billed for acupuncture services rendered from May 23, 2007 through May 31, 2007) on June 21, 2007. Defendant denied payment for the portion of this claim which billed for treatment on May 23, 2007 and May 24, 2007, based on plaintiff’s submission of the claim form beyond the 45-day period. Defendant’s claims examiner averred that the claim form had not been received by defendant until July 13, 2007 and annexed the envelope, bearing a July 10, 2007 postmark, which purportedly contained the claim form in question. As there is an issue of fact regarding the date that this claim form was mailed, defendant was not entitled to summary judgment dismissing the portion of the claim which billed for treatment on May 23, 2007 and May 24, 2007.

With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.

Defendant denied the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 based on an independent medical examination (IME) performed on August 13, 2007 by an acupuncturist who concluded that further acupuncture treatment was no longer necessary. In support of its cross motion, defendant submitted the sworn report of the acupuncturist, which established, prima facie, a lack of medical necessity for the services performed from August 29, 2007 through September 6, 2007. In opposition, plaintiff submitted the affidavit of its treating acupuncturist which did not rebut the conclusions set forth in the IME report (see Olga Bard Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51898[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s cross motion as seeks to dismiss this portion of plaintiff’s claim should have been granted.{**35 Misc 3d at 72}

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 is granted.

Golia, J. (dissenting in part and concurring in part and voting to modify the order, insofar as appealed from, by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted and by providing that so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover for services rendered from May 31, 2007 through August 27, 2007 is vacated, [*3]and the matter is remitted to the Civil Court for a new determination of this branch of defendant’s cross motion, in the following memorandum). I must dissent from my colleagues in the majority as to their implicit finding that a court is under no obligation to take notice of the rates set forth in the workers’ compensation fee schedule. Indeed, the question here is one of judicial notice and the obligations of the court with respect thereto. While the majority does not specifically cite to the term, judicial notice is the issue. I previously filed a concurrence addressing the very same issue in Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co. (14 Misc 3d 142[A], 2007 NY Slip Op 50372[U] [App Term, 2d & 11th Jud Dists 2007]). While my concurrence in Stanley Liebowitz, M.D. P.C. specifically addressed the Civil Court’s grant of summary judgment to the medical provider, as opposed to the denial of summary judgment to the insurance provider, the issue of judicial notice of the no-fault fee schedule was similarly the underlying basis of that matter.

CPLR 4511 (a) states that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state” (emphasis added). As the fee schedule by which the rates of no-fault medical providers is determined is codified in the Official Compilation of Codes, Rules and Regulations of the State of New York, it falls under the purview of this mandate, and is consequently an obligation of this court.{**35 Misc 3d at 73}

The fee schedule utilized in New York State’s no-fault insurance scheme is the same schedule that was originally devised to set fees for medical services provided in conjunction with workers’ compensation claims. The workers’ compensation fee schedule was “incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a])” (LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). Hence, the fee schedule, as it pertains to no-fault claims, is codified as part of the Official Compilation of Codes, Rules and Regulations of the State of New York as a component of Insurance Department Regulations (11 NYCRR) § 68.1 (a).

The New York Court of Appeals has specifically addressed judicial notice as it pertains to New York State regulations. In Matter of New York Assn. of Convenience Stores v Urbach (92 NY2d 204, 214 [1998]), the Court of Appeals found that the repeal of certain regulations by the New York State Tax Department was a development of which the Court “must take judicial notice.”

Both the Third and First Departments have held much the same. In Cruise v New York State Thruway Auth. (28 AD2d 1029, 1030 [1967]), the Appellate Division, Third Department, found that “the [trial] court was required [by CPLR 4511 (a)] to take judicial notice of” certain regulations of the New York State Thruway Authority. In Chanler v Manocherian (151 AD2d 432, 433 [1989]), the Appellate Division, First Department, held that, under CPLR 4511 (a), “[t]he refusal to take judicial notice of pertinent laws and regulations constitutes reversible error” (citing Howard Stores Corp. v Pope, 1 NY2d 110 [1956]).

The essential principle underlying these decisions is that a court has an inherent obligation to know the laws which it is charged with applying, much the same as a judge would charge a jury on the law at the close of evidence. Indeed, in discussing the role of judicial notice in the application of laws, the American Jurisprudence Proof of Facts states that “[t]he exercise of [*4]such power is so much taken for granted, that the specific term ‘judicial notice’ is not generally associated with it, though technically it could well be applied,” as “[a] court has inherent power to know the domestic law of its own jurisdiction, both statutory and case law” (60 Am Jur Proof of Facts 3d 175, § 3).

This long-entrenched reluctance of courts to take judicial notice of codified laws and regulations is illustrated in some aged opinions of appellate courts in our sister states: “[i]nferior {**35 Misc 3d at 74}courts are required to know the local regulations, municipal ordinances and town by-laws which it is their duty to administer” (Strain v Isaacs, 59 Ohio App 495, 514, 18 NE2d 816, 825 [1938]); “[t]he court is bound to take notice of the law” (Randall v Commonwealth of Virginia, 183 Va 182, 186, 31 SE2d 571, 572 [1944]). Both cases remain good law in their respective jurisdictions and continue to inform as to the proper role of judicial notice.

More recently, in Getty Petroleum Mktg., Inc. v Capital Term. Co. (391 F3d 312, 322 [2004]), Judge Lipez of the United States Court of Appeals for the First Circuit wrote in a concurring opinion:

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.”

In light of the above-discussed precedent and the tangential connection between the formal practice of judicial notice and the recognition of codified laws and regulations, I can see no reason why this court should not take notice, judicial or otherwise, of the fee schedule. The fee schedule has been made part of the law of New York (see LVOV Acupuncture, P.C., 2011 NY Slip Op 51721[U]).

An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.{**35 Misc 3d at 75}

Pesce, P.J., and Steinhardt, J., concur; Golia, J., dissents in part and concurs in part in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, October 28, 2011

APPEARANCES OF COUNSEL

Khavinson & Associates, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant. McDonnell & Adels, P.L.L.C., Garden City (James J. Cleary, Jr., of counsel), for respondent.

{**33 Misc 3d at 65} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands is granted to the extent of compelling plaintiff to provide the documents sought in items 19, 20, and 21 of defendant’s notice to produce and in interrogatory 11 (c) within 60 days of the date of this decision and order, and by further compelling plaintiff to produce its owner, John McGee, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, the order, insofar as appealed from, 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 as granted defendant’s motion to strike the action from the trial{**33 Misc 3d at 66} calendar and compel plaintiff to respond to defendant’s discovery demands and to produce its owner for an examination before trial (EBT).

It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant’s motion to strike the action from the trial calendar was untimely, under the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing [*2]laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

The record indicates that plaintiff objected to producing items 19 through 21 of defendant’s notice to produce, which sought plaintiff’s bank statements and canceled checks (item 19), plaintiff’s federal and state tax returns including attachments and schedules (item 20), and plaintiff’s payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff’s objection to the foregoing demands lacked merit. Defendant has shown that plaintiff’s bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns and payroll tax filings (see CPLR 3101 [a]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d{**33 Misc 3d at 67} 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff’s responses to the remainder of defendant’s interrogatories and defendant’s notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.

In light of the foregoing and the misstatements of material facts contained within plaintiff’s certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, October 12, 2011

APPEARANCES OF COUNSEL

The Law Offices of Eva Gaspari, PLLC, New York City (Eva Gaspari of counsel), for appellant.

{**33 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, claiming that it had timely denied reimbursement for the acupuncture services in question based on an independent medical examination by its neurologist, who had found a lack of medical necessity for further treatment. The Civil Court, finding that plaintiff had failed to raise a triable issue of fact, denied plaintiff’s motion and granted defendant’s cross motion. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although plaintiff contends that defendant’s neurologist was not competent to give an opinion on the medical necessity of the acupuncture services rendered, we note that the Insurance Department has stated in an opinion letter, to which we must accord great deference (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; see also Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 30 Misc 3d 90 [App [*2]Term, 2d, 11th & 13th Jud Dists 2011]), that there is no requirement that a claim denial be based upon a medical examination conducted by a health provider of the same specialty area as the treating provider (see 2004 Ops Gen Counsel NY Ins Dept No. 04-03-10 [Mar. 2004]). As there was a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the acupuncture services provided to plaintiff’s assignor (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]), the burden shifted to plaintiff{**33 Misc 3d at 57} to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Upon a review of the record, we find that the affidavit of plaintiff’s treating acupuncturist was sufficient to raise a triable issue of fact as to whether the acupuncture services rendered to plaintiff’s assignor were medically necessary (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Dists 2010]). Accordingly, the judgment dismissing plaintiff’s complaint is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 11, 2011

APPEARANCES OF COUNSEL

Law Office of Michael S. Nightingale, Glen Cove (Bryan G. Melnick of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.

{**34 Misc 3d at 22} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that plaintiff was precluded from litigating its entitlement to first-party no-fault benefits since a prior claim by another provider involving plaintiff’s assignor arising out of the same accident, which claim had been denied by defendant based on a lack of coverage, had already been considered in an arbitration proceeding and had resulted in an award denying reimbursement of no-fault benefits to the claimant therein. Consequently, defendant argued, the complaint should be dismissed without prejudice to plaintiff’s pursuing the matter in arbitration. In the alternative, defendant contended that the action should be dismissed with prejudice on the ground that plaintiff’s assignor had not been involved in the motor vehicle accident in question. The Civil Court, citing Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), granted defendant’s motion to the extent of dismissing the complaint without prejudice to plaintiff’s pursuing reimbursement of no-fault benefits in an arbitration proceeding. This appeal by plaintiff ensued.

In Roggio, the Court of Appeals held that a claimant who elected to arbitrate disputed [*2]claims for first-party no-fault{**34 Misc 3d at 23} benefits waived the right to commence an action to litigate subsequent claims arising from the same accident (see also Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). However, a prior arbitration proceeding involving a different claimant provider does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even though the claims may arise from the same accident (see A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

“Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits . . . Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action” (id. at 23).

Since plaintiff was not involved in the prior arbitration proceeding, and since there was no showing of privity between plaintiff and the provider who was a party to that proceeding, plaintiff was not barred from commencing the instant action, and it was error for the Civil Court to dismiss the complaint without prejudice to plaintiff’s pursuing the matter in arbitration.

With respect to defendant’s alternative ground for dismissal, we find that defendant did not establish its prima facie entitlement to summary judgment based on its lack of coverage defense “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), as the proof offered in support of this branch of its motion seeking summary judgment was not in admissible form (see LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant’s motion should have been denied in its entirety.

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

Steinhardt, J. (dissenting and voting to affirm the order in the following memorandum). Although I am in full agreement{**34 Misc 3d at 24} with the majority that plaintiff is not limited as to the choice of forum (A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [2005]), I would affirm the order because I believe plaintiff’s case should be dismissed with prejudice. The dismissal by the arbitrator in the prior proceeding involving the assignor herein should be binding on this court. It was previously determined that Klever Guaman was not present in the motor vehicle at the time and place of the accident that allegedly caused his injuries. The police report submitted in support of defendant’s motion clearly indicates that the only people present in the respective vehicles were the drivers. In other words, Guaman’s claim of being in the passenger seat of the car being driven by Joffre Gonzalez is belied by the police officer’s observation at the scene. Were the police officer to testify, that portion of the report would be admissible. The arrest report, wherein Guaman admits that he was not involved in the accident for which a provider sought to recover no-fault benefits, is, in this [*3]writer’s opinion, an admission against interest and, therefore, admissible evidence that may be considered on a motion for summary judgment. I would dismiss plaintiff’s complaint on the theory that the assignor is a person not entitled to recover.

Pesce, P.J., and Rios, J., concur; Steinhardt, J., dissents in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, July 8, 2011

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Amos Weinberg, Great Neck, for respondents.

{**32 Misc 3d at 64} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiffs’ motion seeking an order, pursuant to CPLR 3212 (g), deeming certain facts established for all purposes in the action is denied.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had failed to establish their prima facie case. On appeal, this court affirmed the order, stating that, while plaintiffs had established their prima facie entitlement to summary judgment, defendant had demonstrated that there was a triable issue of fact (A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51859[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiffs then moved in the Civil Court for, among other things, an order, pursuant to CPLR 3212 (g), deeming the facts necessary to demonstrate plaintiffs’ prima facie case established for all purposes in the action, arguing that they were entitled to such relief in light of this court’s prior determination that plaintiffs had established their prima facie case but that defendant’s papers were sufficient to raise a triable issue of fact. The Civil Court granted this branch of plaintiffs’ motion, and defendant appeals.

An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court’s finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing{**32 Misc 3d at 65} party to raise a triable issue of fact, just as a court’s “denial of a motion [*2]for summary judgment establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY Prac § 287, at 487 [5th ed]).

In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff’s case. It follows, then, that there is nothing in this court’s order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs’ case. As a result, the Civil Court improperly relied upon this court’s prior order in limiting the issues for trial pursuant to CPLR 3212 (g).

Accordingly, so much of the order as granted the branch of the motion seeking relief pursuant to CPLR 3212 (g) is reversed, and said branch of the motion is denied.

Steinhardt, J.P., Golia and Rios, JJ., concur.

[*1]

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}