No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Archive for the ‘2106 and 2309’ Category

Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (1st Dept. 2010)

“The affidavit of plaintiff’s witness, purportedly sworn to in the Dominican Republic, lacks the certificate of conformity (Real Property Law § 301-a) required by CPLR 2309(c), and therefore is not properly before the Court (see Matter of Elizabeth R.E. v Doundley A.E., 44 AD3d 332 [2007]).”

There is no set rule regarding the consequence for failing to obtain a certificate of conformity.  It seems to be up to the panel at the appropriate appellate court to determine, ad hoc, whether the affidavit will be accepted.  Sometimes the defect is excusable, sometimes it is not.  Sometimes the defect may be cured later on, sometimes it may not.  I cannot give an accurate description of the law on this topic.  All I can say is that make sure you obtain a certficiate of conformity for out of state affidavits.  There is no reason to be stuck playing Russian roulette, in determining whether the affidavit, at the end of the day, will be accepted.

“Furthermore, the computerized range-of-motion tests referred to in Dr. Dudelzak’s affirmations were not in admissible form because they were not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without admissible evidence of quantified range-of-motion limitations contemporaneous with the accident, the plaintiffs could not have established the duration of the injuries required to raise a triable issue of fact as to whether they sustained a serious injury under the permanent consequential limitation or significant limitation of use categories of the no-fault law (see Kuchero v Tabachnikov, 54 AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).”

The computerized range of motion testing is medically necessary because it is instrumental in meeting the serious injury threshold of the Insurance Law.  It was not admissible, however, because it was not properly affirmed.

Another owner of a medical facility, who improperly used the affirmation device, succumbed to Defendant’s summary judgment motion based upon the medical necessity defense.

Doshi Diagnostic Imaging Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50384(U)(App. Term 2d Dept. 2010)

“In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, [*2]265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]).”

“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”

Note that under the rule of the Appellate Term, Second Department, there would not be a second chance to cure the 2309(c) defect.  See, Crossbridge Diagnostic Radiology, P.C. v. Encompass Ins. Co., 24 Misc.3d 134(A)(App. Term 2d Dept. 2009).  Also, note my proposed solution to this issue and see how close the court came to it.  Finally, look at the most recent Appellate Division, Second Department case on point.

Betz v Daniel Conti, Inc., 2010 NY Slip Op 00086 (2d Dept. 2010)

“Although the affidavit of the defendants’ expert, which was notarized outside the state, failed to conform to the requirements set forth in CPLR 2309(c), contrary to the Supreme Court’s determination, such defect was not fatal, as the plaintiff was not prejudiced thereby ( see CPLR 2001; Smith v. Allstate Ins. Co., 38 AD3d 522; see also Falah v. Stop & Shop Cos., Inc., 41 AD3d 638).”

I am trying to find out if the plaintiff in his opposition papers objected to Defendant’s violation of CPLR 2309(c).  I checked the court’s website to see if the underlying order was available online, either in .html or .pdf format.  Much to my dismay, it is nowhere to be found.  Would someone who appears in Supreme Suffolk or Suffolk County Court be willing to pull this order and email it to me?  The index # is:  17202/06.  If there is no mention in the order as to whether Plaintiff objected to the improper attestation, would you be able to go through plaintiff’s opposition papers to see if he objected?

The Courts seem to be all over the place with the certificate of conformity requirement for out of state affidavits found in CPLR 2309.  This statute serves no purpose in 21st century commerce and should be shelved with the common law demurrer and the serve and file system of commencing actions.  Yet, it lives on and another case is dedicated to this antiquated statute.

In Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 2009 NY Slip Op 09713 (1st Dept. 2009), the Appellate Division held the following:

“Defendant has not preserved its argument that the foreign affidavits were invalid for lack of the certification required by CPLR 2309(c) and Real Property Law § 299-a. In any event, the courts are not rigid about this requirement. As long as the oath is duly given, authentication of the oathgiver’s authority can be secured later, and given nunc pro tunc effect if necessary (see Siegel, Practice Commentary, McKinney’s Cons Laws of NY, CPLR 2309:3). The absence of such a certificate is a mere irregularity, and not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).”

I read this case for the proposition that the failure to secure a 2309 certification should allow a case to be adjudicated on the merits, provided the certification is obtained within a time period following the decision.

Here is how I would see a decretal paragraph on a plaintiff’s motion for summary judgment that is based upon an affidavit that does not contain the 2309 certificate language:

“It is ordered that Plaintiff’s motion for summary judgment is granted and the clerk is directed to enter judgment in the sum of  XXXX, with execution stayed for 30-days from the service of this order with notice of entry, for Plaintiff to provide a certificate of conformity to this  court.  Should Plaintiff fail to provide a certificate of conformity within 30-days from the service of this order with notice of entry, then Plaintiff’s motion for summary judgment is denied.”

The second issue here involves the use of a reply to introduce new evidence or arguments when the opposing party does not get to have the last say on the motion.

“Plaintiff demonstrated it was a holder of the subject notes, and had a capacity to sue thereunder. Defendant failed to demonstrate a genuine defense to the notes. The notes were made payable to a Delaware corporation that later merged with another Delaware corporation, which in turn assigned to plaintiff its rights to the notes. The surviving corporation had the power to make that assignment (see Business Corporation Law § 906[b]; 8 Del Code Ann § 259[a]).

In its reply, plaintiff submitted a supplemental affidavit containing endorsements to the notes, which had inadvertently been omitted on the initial moving papers. The court properly considered this submission because defendant had made an issue of the omission in response to the motion (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630 [1999]).”

Dave Gottlieb in CPLR land discusses this case.

“The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin’s lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin’s cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The “Final Narrative” medical report of Dr. Jerome L. Greenberg, McMullin’s chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg’s affidavit, along with the “Final Narrative” report, in a surreply entitled, “Supplemental Affirmation in Opposition.” This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804).”

What happens if you draft an affirmation that is missing the magical “2106″ language and the defect is properly objected to?  You lose.

Can you move to renew?  As we learn in Arkin v Resnick 8 2009 NY Slip Op 08980 (2d Dept. 2009), the answer is a qualified “yes”.

“The motion papers included a document by their medical expert, Dr. Alan Mensch, that was labeled as an “affirmation,” but was prefaced with a statement that he had been “duly sworn.” However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury.  By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon. Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form (see CPLR 2201, 2221[e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575).”

I am not sure we would have the same result if a chiropractor improperly affirmed a document and, following an adverse result, the “losing” attorney sought leave to renew in order to place the document in affidavit form.  This would not be inadvertent.  Rather, it would be considered a strategical gaff, which would not lend itself to relief through a motion to renew.

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the “AB v. Liberty” line of cases and the “old” Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

And now…
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U)(App. Term 2d Dept. 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_50810.htm

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant’s motion argued that: (Issue #1) a business record predicate was not set forth in Defendant’s moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant’s papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed the law know that the Appellate Division, Second Department, has ruled on this issue, albeit the last time in 2006 and the first time 2004.

Issue #2 was quickly disposed of since the affidavit that was presented has previously been held to adequately describe the mailing procedure.

Issue #3 is the reason this case went up the appellate ladder. Plaintiff, in her opposition papers, presented an affirmation of Dr. Zakharov. Upon a search of the Office of Professional Responsibility (OPR) website, it was learned that Dr. Zakharov was the President of this corporation. CPLR 2106 expressly disallows a party to “affirm” to the truth of matters set forth in the litigation, and at least three cases previously held that a member of a business organization who is a party to the litigation may not use the CPLR 2106 affirmation process.

A proper objection along with the printout of the OPR site were set forth in Defendant’s reply papers. Incidentally, some have argued (and there was merit to this argument) that the OPR record needed to be certified. CPLR 4518(c). I think we can all agree that after Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. 2009 NY Slip Op 00351 (2d Dept 2009), this objection is palpably without merit.

Plaintiff’s papers were properly excluded. Having failed to raise a triable issue of fact, summary judgment was awarded to Defendant.

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…