October 29, 2014

Clarke v Scottsdale Ins. Co. (2014 NY Slip Op 51586(U))

Headnote

The main issue in this case was whether the out-of-state affidavit submitted by the defendant's claims analyst in support of the motion for summary judgment was admissible due to the absence of a certificate of conformity. Plaintiff objected to the form of the affidavit, but the court held that the absence of a certificate of conformity was not a fatal defect and could be corrected nunc pro tunc or disregarded. However, the affidavit was found to be inadmissible for a different reason, as the notary public did not affirm that the claims analyst had appeared before her and established her identity. Therefore, the court affirmed the denial of defendant's motion for summary judgment. The holding of the court was that the affidavit of defendant's claims analyst was not in proper admissible form and there was no basis to disturb the denial of the motion.

Reported in New York Official Reports at Clarke v Scottsdale Ins. Co. (2014 NY Slip Op 51586(U))

Clarke v Scottsdale Ins. Co. (2014 NY Slip Op 51586(U)) [*1]

Clarke v Scottsdale Ins. Co.

2014 NY Slip Op 51586(U) [45 Misc 3d 131(A)]

Decided on October 29, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-1121 K C

Colin Clarke, M.D., P.C. as Assignee of TAKEEMA MOSES and LUIS RODRIGUEZ, Respondent,
against
Scottsdale Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 30, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that the out-of-state affidavit of defendant’s claims analyst submitted in support of the motion was not accompanied by a certificate of conformity. While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Bey v Neuman, 100 AD3d 581 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be corrected nunc pro tunc or disregarded pursuant to CPLR 2001 (see Midfirst Bank v Agho, __ AD3d __, 2014 NY Slip Op 05778 [2d Dept 2014]).

Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). As we do not consider the factual assertions contained in that document, we find no basis to disturb the Civil Court’s denial of defendant’s motion.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: October 29, 2014