July 9, 2009

563 Grand Med., P.C. v Nationwide Ins. Co. (2009 NY Slip Op 51493(U))

Headnote

The relevant facts that the court considered were that 563 Grand Medical, P.C. filed a petition to vacate a master arbitrator's award that upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The court denied the petition, stating that the papers submitted by petitioner were insufficient on their face to warrant the granting of any relief. The main issue decided was whether the document submitted by the petitioner in support of the petition was sufficient as an affirmation, and the court held that it was not. The court affirmed the order of the Civil Court, without costs, stating that a special proceeding should terminate in a judgment, not an order.

Reported in New York Official Reports at 563 Grand Med., P.C. v Nationwide Ins. Co. (2009 NY Slip Op 51493(U))

563 Grand Med., P.C. v Nationwide Ins. Co. (2009 NY Slip Op 51493(U)) [*1]

563 Grand Med., P.C. v Nationwide Ins. Co.

2009 NY Slip Op 51493(U) [24 Misc 3d 135(A)]

Decided on July 9, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-397 K C.

563 Grand Medical, P.C. a/a/o DANIEL PENA, Appellant,
against
Nationwide Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 26, 2007. The order denied the petition of 563 Grand Medical, P.C. to vacate a master arbitrator’s award and confirmed the award.

Order affirmed without costs.

563 Grand Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see Avanessov v State-Wide Ins. Co., 21 Misc
3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]; 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 a document that was denominated an “Affirmation in Support,” which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who purportedly signed the document merely indicated that he “states as follows,” which is insufficient under the law (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. [*2]& 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 (Avanessov, 21 Misc 3d 132[A], 2008 NY Slip Op 52131[U]; SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order is affirmed, albeit on other grounds.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009