No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Search Results
The First Department’s newest inconsistent position on 2309
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 [...]
A derivative of CPLR 3404 appears again in the Civil Court
The Appellate Division First Department has on numerous occasions has held that CPLR 3404 applies to Civil Court actions, while the Second Department has found that otherwise. Compare, Kaufman v Bauer, 36 AD3d 841 (1st Dept. 2007), with Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 (2d Dept. 2007).
The matter of Fair Price Med. [...]
Plaintiff failed to demonstrate a reasonable excuse for the late submission of its bill
Synergy First Med. PLLC v ELRAC Inc, 2010 NY Slip Op 50048(U)(App. Term 1st Dept. 2009).
I missed this case, although it was pretty well discussed here and here.
The appellate term first department’s take on 2309
“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 [...]
2309 yet again – from the Appellate Division, Second Department
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 ( [...]
The failure to specifically object to a deficiency in a denial of claim form at the nisi prius court forever waives this objection
This is not a new concept. If you do not preserve your objection, then you waive the right to challenge the proffered piece of evidence. In the no-fault context, we saw it in Continental v. Mercury, where Plaintiff’s failure to specifically object to the admissibility of an affidavit rendered the argument waived. There also are [...]
CPLR 2309 and the ability to submit new evidence in a reply
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 [...]
Renewal under certain circumstances may be granted to correct an improper affirmation
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 [...]
2309 – again
Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51629(U)(App. Term 2d Dept. 2009)
“The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with [...]
What do CPLR § 2309 and CPLR § 2106 have in common?
The answer, unfortunately, is that too many practitioners fail to understand how to utilize and work with these statutes. It seems that in the field of no-fault and commercial debt collection, attorneys are forever mangling the application of these statutes.
Crossbridge Diagnostic Radiology v Encompass Ins., 2009 NY Slip Op 51415(U)(App. Term 2d Dept. 2009)
The [...]
