January 14, 2010

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U))

Headnote

The main issues considered in this case were whether the affidavit submitted by the defendant employee complied with CPLR 2309(c) and whether the defendant was entitled to summary judgment dismissing the action to recover first-party no-fault benefits. The court found that while the affidavit established the defendant's entitlement to summary judgment, it did not comply with the requirements of CPLR 2309(c) as it failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. The holding of the court was that the defendant's motion for summary judgment to dismiss the complaint was granted on the condition that the defendant files and serves an affidavit with the appropriate certificate within 60 days, and if they fail to do so, the order is affirmed.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U))

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U)) [*1]

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co.

2010 NY Slip Op 50043(U) [26 Misc 3d 131(A)]

Decided on January 14, 2010

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570686/09.

Eastern Star Acupuncture, P.C., a/a/o Charles Jeter, et al., Plaintiffs-Respondents, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: January 14, 2010