Opinion
No. 99743/09.
2013-01-15
QUALITY PSYCHOLOGICAL SERVICES, P.C. a/a/o Justas Kalvaitis, Plaintiff, v. HARTFORD INSURANCE COMPANY, Defendant.
Law Offices of Melissa Betancourt Brooklyn, Attorneys for Plaintiff Quality Psychological Services. Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, Attorneys for Defendant Hartford Insurance Company.
Law Offices of Melissa Betancourt Brooklyn, Attorneys for Plaintiff Quality Psychological Services. Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, Attorneys for Defendant Hartford Insurance Company.
HARRIET THOMPSON, J.
Motion Cal No.Motion Seq. #
Papers Submitted to Special Term
on 2/15/12,
DECISION/ORDER
Recitation, as required by CPLR § 2219(a), of the papers
considered in the review of this Motion
+---------------------------------------------------------+ ¦PapersNumbered ¦ ¦ +------------------------------------------+--------------¦ ¦Notice of Motion ¦1–2; 3–4 ¦ +------------------------------------------+--------------¦ ¦Order to Show Cause and Affidavits Annexed¦____________ ¦ +------------------------------------------+--------------¦ ¦Answering Affidavits ¦–––– 5 –––– ¦ +------------------------------------------+--------------¦ ¦Replying Affidavits ¦––– 6 –––– ¦ +------------------------------------------+--------------¦ ¦Exhibits ¦____________ ¦ +------------------------------------------+--------------¦ ¦Other ¦____________ ¦ +---------------------------------------------------------+
PROCEDURAL HISTORY This Civil Court action was commenced in or about September 21, 2009, by the service of a Summons and Endorsed Complaint to recover first-party No–Fault benefits as a result of alleged injuries arising out of an automobile accident which occurred on July 25, 2008. In or about November 17, 2009, the Defendant interposed a Verified Answer which contained various applicable and inapplicable affirmative defenses.
The Defendant moves this Court for summary judgment pursuant to CPLR § 3212 by Notice of Motion returnable on August 16, 2011 on the grounds that the Plaintiff failed to submit to two properly scheduled Examinations Under Oath (hereinafter “EUO”), a condition precedent to insurance coverage and a violation of the Insurance regulations, precluding recovery of the medical claim. On the return date, the attorneys, by written agreement, adjourned the motion to February 15, 2012 for the parties to engage in motion practice.
The Plaintiff, in opposition, attacks the admissibility and credibility of the Defendant's affidavits. The Plaintiff seeks to persuade this court that the certificate of conformity affirmed by ALAN CHANDLER, ESQ. does not contain the language “under the penalties of perjury” pursuant to CPLR § 2106 and therefore, is inadmissible. The Plaintiff also argues that the out-of-state affidavit of NANCY ALPIZAR is missing a certificate of conformity altogether and is void as a matter of law. Additionally, Plaintiff argues that the affidavits do not establish proper and timely mailing of the EUO notices and denials since it contains various factual discrepancies. The Plaintiff also argues that the Defendant failed to establish that EUO requests were properly mailed since the certified mail return receipts are absent from the motion; the Defendant failed to schedule the EUO's in the county where the Plaintiff resides and therefore, it is palpably improper; and the Defendant failed to properly rebut the prima facie case of the Plaintiff and accordingly, the Plaintiff is entitled to judgment as a matter of law.
In reply, and in further support of the Defendant's motion for summary judgment, the Defendant challenges the Plaintiff's argument that the certificate of conformity of ALAN CHANDLER, ESQ. is defective for failure to swear “under the penalties of perjury” pursuant to CPLR § 2106 and asserts that the certificates of conformity for the out-of-state affidavits are proper. The Defendant further reiterates that the affidavits of the Defendant's Claims Representative and the Defendant's Mailing Courier Representative are sufficient to establish the timely mailing of EUO letters and denials of the claim (NF–10) and lastly, argues that the request for a specific witness affiliated with the Plaintiff (Dr. Herbert Fischer, Ph. D., the treating physician) to appear for the EUO outside of the Plaintiff's county was waived due the lack of any objections to the requests.
The Plaintiff, by Notice of Cross Motion, returnable on February 15, 2012, also seeks summary judgment. The Plaintiff contends that it has established its prima facie case through the submission of the proper proof of claim in the form of a health care services application (NF–3) that was properly generated and timely mailed to the Defendant in the ordinary course of business, the claim was received by the Defendant and the Defendant failed to make payment within thirty (30) days of receipt as required by No–Fault Insurance Law and regulations or to take any action to properly toll the time constraints imposed by 11 NYCCRR § 65.
Both parties appeared by their attorneys and after oral argument, this Court reserved decision for a final disposition.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The following facts are uncontroverted. Justas Kalvaitis was treated by the above named Plaintiff for alleged injuries between August 26, 2008 and September 29, 2008 for the total sum of $1,341.14. The bills for the above services were received by the Defendant on September 29, 2008.
In order to establish its prima facie case, the Plaintiff must prove that the proper notice of claim for the medical services provided to the assignor was mailed to the Defendant and received by the Defendant, and that payment of the No–Fault benefits were neither paid or denied within thirty (30) days of receipt. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742, 774 N.Y.S.2d 564 (2nd Dept., 2004) [plaintiff hospital made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue]; see also Westchester Med. Center v. Liberty Mutual Ins. Co., 40 AD3d 981, 837 N.Y.S.2d 210 (2nd Dept.-, 2007); Insurance Law 5106(a).
The No–Fault Law requires the insurance carrier to either pay or deny the claim for No–Fault benefits within thirty (30) days from the date of receipt of the claim. Insurance Law, § 5106(a); 11 NYCRR § 65.15(g)(3). Within ten (10) business days after the receipt of the NF–2, the insurer must send verification forms to the insured or the provider. In the regulations, after receipt of the completed verification, the insurer may seek “additional verification” or further proof of claim from the insured or assignee within fifteen (15) days thereof. 11 NYCRR 65 § 3.5(b). The insurer may seek additional verification in the form of an independent medical examination (IME) within thirty (30) days from the date of the initial medical bills (11 NYCRR65.3.5(d)), or as in this case, if the insurer requires an EUO of the insured or provider to establish such proof of claim, the EUO must be based upon “the application of objective standards so that there is specific objective justification supporting the use of such examination”. Such standards are subject to review by the Insurance Department. 11 NYCRR § 65–3.5(e). The regulations direct that the insured or provider be informed that the use of either the IME or EUO by the insurer require the insurer to reimburse the affected party for “any loss of earnings and reasonable transportation expenses.”
If any additional verification has not been provided to the insurer within 30 calendar days after the original request, the insurer shall, within ten (10) calendar days, “follow-up” with the noncompliant party by either telephone call or by mail. 11 NYCRR § 65.3.6(b). At that time, the insurer must notify the claimant or their representative of the basis for the delay of the claim by “identifying, in writing, the missing verification and the party from whom it was requested.”
The prescribed thirty (30) day time line to pay or deny a claim is tolled until the insurer has received proper verification of all relevant information requested of the injured party or provider. 11 NYCRR 65.15(d), (g), (7); St. Vincent Hospital of Richmond v. American Tr. Ins. Co., 299 A.D.2d 338, 750 N.Y.S.2d 98 (N.Y. A.D., 2002). The burden does not shift to the insurer to pay or deny the claim until the required party has complied with the verification request.
Of course, in reality, the insurer does not always act timely. In this judicial department, the Appellate Division in Keith v. Liberty Mutual Fire Ins. Co., 118 A.D.2d 151, 503 N.Y.S.2d 441 (1986) determined that 11 NYCRR 65.3.8(j), which describes the process of deviation from the rules which reduces the thirty calendar days for regulatory noncompliance, that “[a]lthough the clock does not begin to run on the thirty-day calendar requirement until the insurer receives all of the necessary verification ... the insurer's lack of diligence in obtaining the verification may reduce the thirty-day period even before verification is obtained. In that case, the insurer was four business days late in requesting the verification and thus, the insurer's thirty-day calendar days to pay or deny the claim must be reduced by four days, leaving 26 days.”
According to Judge Hagler, in Inwood Hill Med v. Allstate, 3 Misc.3d 1110(A), 787 N.Y.S.2d 678 (N.Y. Civ.Ct., 2004), a thorough and excellent analysis of the No–Fault regulations, the thirty (30) day rule does not apply to requests for additional verification within the prescribed time frame and this court concurs. He states that “the inconsistency may be resolved by stating that the insurer's time is not reduced where it sought the additional verification request late but within the prescribed thirty calendar days (i.e. more than fifteen business days and up to twenty-nine days which would not effectively reduce the thirty days to zero). Where the insurer either seeks additional verification requests or even provides a time to respond outside the thirty calendar days, the proverbial clock has run and there is no need to resort to the 11 NYCRR 65–3.8(j) counting requirement. A contrary interpretation of the regulation would run counter to the clear wording of Insurance law § 5106(a) providing for the strict 30–day rule. See Karciscs v. Merchants Mutual Ins. Co., 49 N.Y.2d 451, 426 N.Y.S.2d 454 (N.Y, 1980) .”
An EUO permits the insurer to question the injured party or its assignee regarding the claim. As Judge Hirsh aptly stated in Dynamic Medical Imaging, P.C. v. State Farm Mutual Auto Ins., 29 Misc.3d 278, 905 N.Y.S.2d 880 (Dis.Ct.Nassau) “while an EUO has been treated by the courts as a condition precedent to coverage, the no-fault regulations treat the EUO as a form of verification. Thus, where a carrier properly demands an EUO” ... the verification is deemed to have been received by the insurer on the day the examination was performed. 11 NYCRR 65–3.8(a)(1).” In addition, it has been held that the appearance at a properly demanded EUO is a condition precedent to an insurance carrier's liability to pay no-fault benefits ( Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc.3d 141(A), 91 N.Y.S.2d 692 (N.Y.Supp.App.Term, 2010)).
As the Defendant correctly states in the instant motion, all automobile insurance policies with No–Fault endorsements in our state contain the prescribed language of the Insurance Regulations. Specifically, 11 NYCRR 65–1.1 provides that “[u]pon request by the Company, the eligible injured person or that person's assignee or representative shall: ... (b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same.....”
Moreover, 11 NYCRR 65–3.5(c) states that “[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested.” Lastly, as also correctly argued by the Defendant, 11 NYCRR–1 provides that “[n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” After all, the goal of the insured or provider is to get paid and each must act in good faith and cooperate with the insurer to achieve that purpose. So even if the insured believes it can not or should not comply with the insured's request, the insured has a duty to communicate with the insurer about that request. See Dilon Med. Supply Corp. v. Travelers Ins. Co., 7 Misc.3d 927, 796 N.Y.S.2d 872 (N.Y. Civ Ct, Kings County, 2005).
The most significant substantive issue before this court is whether the affidavits of mailing meet the requirements of the No–Fault law to establish proper proof of mailing of the EUO notices and the denials. Surprisingly, there are a significant number of cases that tackle, what at first blush appears, seemingly a simple issue. It is essential that we examine the legal criteria adopted by the courts for establishing proper mailing.
The common law doctrine of presumption of regularity is still alive in New York State despite arguments to the contrary. Generally speaking, a letter or notice that is properly stamped, addressed and mailed is presumed to be received by the addressee. News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y. 211, 176 NE 169 (N.Y., 1931); New York New Jersey Products Dealers Coop v. Mocker, 59 A.D.2d 970, 399 N.Y.S.2d 280 (N.Y. A.D., 3d Dept., 1977). A simple denial of receipt has been held insufficient to rebut this presumption. Countrywide Home Loans, Inc. v. Brown, 305 A.D.2d 626, 760 N.Y.S.2d 200 (N.Y. A.D.2d Dept., 2003). See also Precision Dev. V. Hartford Fire Ins. Co, 10 Misc.3d 1055(A), 809 N.Y.S.2d 483 (N.Y. Sup., 2005) where the court precluded recovery on a payment bond issued by the Defendant based on the failure of the Plaintiff to comply with the notice requirements of the State Finance Law. The court would not allow the Plaintiff's to rely on this common law presumption of regularity to prove receipt of the required notice based on the legislative mandate that the notice of claim by the contractor be made by personal delivery or by registered mail. Conversely, the No–Fault regulations, namely, 11 NYCRR 65–3.5(a) state that once the insurer receives the NF–2 application for benefits, the insurer “[s]hall forward to the parties those prescribed verification forms it will require prior to payment of the initial claim.” As Judge Tapia recently stated in Hastava & Aleman Assoc. P.C. v. State Farm Mut. Auto Ins. Co., 24 Misc.3d 1239(A), 899 N.Y.S.2d 59 (Civ.Ct., Bx Ct., 2009) “the regulation uses “forward” to describe the manner in which notification is to be effected. The only kink is determining what constitutes sufficient “notice” because the regulation does not specify the mailing procedure by which to notify the injured party.” In that case, the court determined that the mailing of a letter by certified mail, return receipt requested is entitled to the same presumption of receipt as regular first-class mail in the absence of the signed returned receipt”. Furthermore, “satisfying No–Fault policy conditions does not have to be compromised at the expense of challenging mailing procedures because proof of mailing of verification letters via regular USPS is enough to create a presumption of receipt. In addition, the use of certified mail does not create a more demanding presumption of mailing and receipt beyond that of a letter that was properly mailed. The regulations make no distinction between sending a letter via regular mail or via certified mail.”
The presumption of receipt may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776 (2001); Nassau Ins Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117 (1978); Matter of Francis v. Wing, 263 A.D.2d 432, 694 N.Y.S.2d 29 (N.Y. A.D. 1st Dept., 1999); Azriliant v. Eagle Chase Assoc ., 213 A.D.2d 573, 575, 624 N.Y.S.2d 238 (N.Y. A.D.2d Dept., 1995); Phoenix Ins. Co v. Tasch, 306 A.D.2d 288, 762 N.Y.S.2d 99 (N.Y. A.D.2d Dept., 2003); Matter of Colyar, 129 A.D.2d 946, 947, 515 N.Y.S.2d 330 (N.Y. AD3d Dept., 1987). Therefore, affidavits that merely state that the bills were mailed within the statutory time period have been held insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Ins. Co., 4 Misc.3d 133(A) (App. Term 9 & 10th Jud. Dists, 2004).
The burden is on the insurer to present an affidavit of an employee who personally mailed the verification/denial, or on the other hand, an affidavit of an employee with personal knowledge of the office's mailing practices and procedures. Such individual must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim ( emphasis added ).
By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the plaintiff and were received. The burden then shifts to the plaintiff to rebut the presumption of receipt. Abuhamra v. New York Mut. Underwriters, 170 A.D.2d 1003, 566 N.Y.S.2d 156 (N.Y. A.D. 4th Dept., 1991); Residential Holding Corp. v. Scottsdale Ins. Co., supra. It is worthy of repetition that the denial of receipt, standing alone, is insufficient to rebut the presumption. Indeed, “[i]n addition to a claim of no receipt, there must be a showing that the routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed. Nassau Ins Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117 [1978];See also Badio v. Liberty Mutual Fire Ins. Co., 12 AD23d 229, 785 N.Y.S.2d 52 (App.Div., 1st Dept., 2004).
Having discussed the frame work of the insurance law and regulations to lay the proper foundation for our analysis in the case at bar, the court makes the following findings of facts and conclusions of law.
The Plaintiff submitted a proof of claim in the form of a health care services application (NF–3) for reimbursement for health care services rendered to the assignor, JUSTAS KAVAITIS, in the amount of $1,341.14 for dates of services from 8/26/2008–9/16/2008.
The affidavit of STEVEN HAYDEN, an employee in the Special Investigation Unit since 1999 at Hartfort, informs the court that there was an ongoing investigation into the operation and management of the provider, QUALITY PSYCHOLOGICAL SERVICES, P.C., independent of this case. This case is yet another case that has delved into the operation and billing practices of the Plaintiff. The affidavit of STEVEN HAYDEN states that the Defendant commenced the investigation to verify bills submitted by the Plaintiff, [s]pecifically, Hartford initially questioned the fact that nearly all clinical findings of QUALITY PSYCHOLOGICAL SERVICES, P.C., were identical from patient to patient and the frequency and duration of their psychological testing and treatment appeared to be excessive. He further states that ...” the bills and records ... not only appeared to be boilerplate, but also incomplete and inaccurate information was provided”. Additionally, ... in many records submitted ... references were made to a patient's age or sex, which was inconsistent with the other information submitted by the patient, including their no-fault application or personal identification (HAYDEN affidavit at ¶ 3 and ¶ 4). As significant, he affirmed that the Defendant “... learned that in a majority of instances these patients had not had psychological problems or complaints, yet the records submitted by QUALITY PSYCHOLOGICAL indicated otherwise and during the investigation ... [he] learned that many patients actually never received treatment and/or testing billed by QUALITY PSYCHOLOGICAL to Hartford” (HAYDEN affidavit at ¶ 5 and ¶ 6).
The court finds that the prior investigation and the investigation of this particular case produced ample evidence to warrant such a demand for the EUO and such demand was fair, reasonable and in accordance with the above insurance regulations. Based on the above findings, it is the opinion of this court that the Defendant properly sought the EUO of the treating physician, Herbert Fischer, Ph. D. to investigate the claim.The court also finds no impediment, statutorily or otherwise, for the insurer to demand the appearance of the treating physician of the Plaintiff corporation at the EUO particularly since the regulations provide that the insurer may insist on the appearance of “any person named by the Company”. 11 NYCRR 65–1.1. Moreover, since the treating physician is responsible for the actual treatment of the patient, such individual would have exclusive knowledge of the course of treatment of the assignor including but not limited to the patient's logs, narrative reports, testing, diagnoses, prescriptions, file memoranda and the like. Although the Plaintiff argues that is was palpably improper for the Defendant to schedule the EUO outside of the county of the Plaintiff, this claim is without merit. Since the Plaintiff did not object, in writing or orally, to the EUO notice, the court finds that the Plaintiff waived any objection to the content and scope of the EUO request. Dilon Med. Supply Corp. v. Travelers Ins. Co., supra.
To establish its prima facie case, the Defendant relies on the affidavit of SARA LOMNICKY. SARA LOMNICKY, at the time of this claim, was a No–Fault Claims Specialist with the Defendant's No–Fault Department located at 8 Farm Springs Road in Farmington, Connecticut. She states that she has knowledge of Defendant's mailing procedures used in connection with written requests for EUO's and/or the production of other documents, as well as the mailing of any denial of claim forms based upon her eight (8) years of employment experience at Hartford. She specifically states that “based on my personal knowledge of the preparation and mailing of the documents at issue in this matter under claim number YXHAF65085”, the EUO notices to the assignor were sent by certified mail (SARA LOMNICKY affidavit at ¶ 4). She explicitly describes the mailing procedures of the Defendant in paragraphs 15(a)-(o). Based upon her knowledge of Defendant's mailing practices and procedures and her review of the file in the instant matter, SARA LOMNICKY informs the court that the Defendant received the medical bills on September 29, 2008 and this fact is undisputed by the Plaintiff. The first EUO letter was mailed on October 3, 2008, within the prescribed fifteen (15) business days after the receipt of the claims, seeking an EUO on October 28, 2008. Then, when the Plaintiff failed to provide the documentary evidence demanded by the verification or appear for the EUO on October 28, 2008, the insurer on November 5, 2008, within ten (10) calendar days after that request, issued a “follow-up” notice for an EUO on November 26, 2008. The EUO request was in compliance with the insurance regulations by identifying the missing verification which the assignor was required to provide to comply with the insurance policy. The letter highlights that” the policy of insurance under which [your] claim is made requires claimants to cooperate with our investigation, produce the demanded documents and [to] testify [at] an examination under oath. The EUO notice demands ten enumerated documents from ¶ 1–¶ 10 which the Plaintiff was duty bound to produce at the EUO, since as stated above, the Plaintiff waived all objections.
On December 2, 2008, the Defendant issued a timely denial for payment of the health care services performed by the Plaintiff based on the grounds that the Plaintiff failed to appear at two scheduled EUO's. The Defendant attaches the denial of claim form as Exhibit A–3 which explicitly states that “ “all benefits are denied for failure to cooperate in the claims investigation, policy condition violated and failure to appear for Examinations Under Oath on October 28, 2008 and November 26, 2008.” Furthermore, it also states that the insured or her representative did not comply with the insurance policy “without a reasonable excuse” and the insurer would reconsider its position should the assignor or representative provide a reasonable excuse for noncompliance. The Plaintiff has not offered any “reasonable excuse” for noncompliance with the insurance policy or the law.
The Defendant also proffers the affidavit of NANCY ALPIZER, a Supervisor with Pitney Bowes, to complete the practices and procedures of the Defendant insurer's mailing procedures. She affirms that a courier from her company picks up the mail from the Defendant's Farmington, Connecticut office every weekday at 3:00 p.m. and at 4:30 p.m. and delivers the mail to the U.S. Post Office on that same day. All of the mail that is picked up on a particular day is delivered to the U.S. Post Office on the same day. The court finds this affidavit reliable and is ample proof of the completion of the mailing practices and procedure of the Defendant particularly since Pitney Bowes is a nonparty witness that has no stake in this litigation notwithstanding the contractual relationship with the Defendant.
Lastly, the Defendant provides the affirmation of JOSHUA E. MACKEY, ESQ., the attorney responsible for conducting the proposed EUO of Herbert Fisher, Ph.D. JOSHUA E. MACKEY affirms he was present in his office prepared to take the EUO of the Plaintiff on both dates and no one affiliated with Plaintiff's office appeared on either date. He also attests that the Plaintiff did not supply the various documents requested to verify the medical services, to wit: patient questionnaire, charts, handwritten notes, memoranda, any referrals, medical treatment, testing and examinations.
The above evidentiary proof submitted by the Defendant is sufficient to demonstrate timely and proper mailing of all EUO letters and the denials. By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the Plaintiff and were received. The burden now shifts to the Plaintiff to rebut the presumption of receipt and to raise a triable issue of fact. Abuhamra v. New York Mut. Underwriters, supra; Residential Holding Corp. v. Scottsdale Ins. Co., supra. The opposition papers of the Plaintiff as well as the supporting attorney affirmation, party affidavit and documentary evidence annexed to the Plaintiff's cross motion do not contain any factual claims that the EUO notices were not received and is devoid of any claim of any fatal defect(s) in their content; neither do they assert in any manner that the routine office practice was not followed or was so haphazard that it would be completely unreasonable to assume that the notice was mailed and received by the Plaintiff. Therefore, the Plaintiff having failed to meet its burden, this court finds that all of the notices and denials were timely received by the Plaintiff.
Although this irrefutable proof has been produced by the Defendant, the Plaintiff argues that the lack of the certified mail receipt is fatal to the Defendant's case. This contention is without merit. The lack of the certified mail receipts is insignificant in this case. The certified mail receipts are superflorous and the court will not infer any negative inference from their absence; the Defendant, through irrefutable admissible evidence in the above affidavits and supporting documents, established proper and timely mailing of the EUO notices and the denials.
Does the Plaintiff raise any issue of fact that would warrant the denial of summary judgment for the insured? The answer is in the negative. The Plaintiff's papers do not raise any issue of fact; it contains only the affirmation of the attorney for the Plaintiff. As the Court of Appeals has firmly held an affidavit or affirmation from a party's attorney who lacks personal knowledge of the facts is of no probative value and is insufficient to support an award of summary judgment; in our case, to defeat an award for summary judgment ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980];Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc.3d 133(A), [App Term, 2nd & 11th Jud. Dists, 2004]; Wisnieski v. Kraft, 242 A.D.2d 290, 6691 N.Y.S.2d 46 [NY A.D., 2d Dept., 1997]; Lupinsky v. Windham Constr. Corp., 293 A.D.2d 317, 739 N.Y.S.2d 171 [NY A.D., 1st Dept., 2002] ). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Courts have consistently determined that it is insufficient to defeat a motion for summary judgment. ( See Park Health Ctr. v. Green Bus Lines, Inc., App. Term., 2d & 11th Jus. Dists., 2002 N.Y. Slip Op. 40029[U] ) in which the court found that “[t]he defendant's attorney submitted an opposing affirmation, based on his knowledge which was “obtained from a reading of the files,” wherein he alleged that the NF–2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995, was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant's attorney's affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v. 3–9 Drugs, 277 A.D.2d 197, 715 N.Y.S.2d 442 [NY A.D.2d Dept., 2000] ). See also Drug Guild Distribs. v. 3–9 Drugs, supra, where the Appellate Division held that “an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent” were insufficient to defeat summary judgment. “The defendant's conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff's documentary evidence”. See also Park Health Center v. Green Bus Lines, Inc., (2002 WL 416484, 2002 N.Y. Slip Op. 40029(U).
Furthermore, the affidavit of VICTORIA SIMKINA, the Supervisor of Billing for QUALITY PSYCHOLOGICAL SERVICES, P.C., as described in the cross motion, was submitted only to attest to the mailing practices and procedure of her employer of the claim forms. Her affidavit and that of the attorney never rebuts the presumption of receipt of the EUO notices and denials. In fact, neither sworn statement allege that the EUO notices were not received and that the mailing practices and procedure was not properly implemented by the Defendant.
We the substantive issues established in this case, this court shall examine the alleged defects claimed by the Plaintiff in the Defendant's papers. The Plaintiff asserts that the certificate of conformity by ALAN CHANDLER, ESQ. accompanying the affidavit of SARAH LOMINKY should be deemed fatally defective because it was not sworn to under the “penalties of perjury” pursuant to CPLR Rule § 2106. The Plaintiff also argues that the affidavit of NANCY ALPIZER is void since it lacks a certificate of conformity altogether. This court has conducted substantial research involving this issue with our civil cases and found no statutory authority or case authority to support the proposition that the lack of the words “under penalty of perjury” makes the certificate of conformity inadmissible.
Rule § 2106 provides in relevant part that “the statement of any attorney admitted to practice in the courts of the state, ... authorized to practice law in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit” “. Plaintiff's reliance on this provision is misplaced. This rule is limited to professionals licensed in our state and permits them to submit affirmations instead of affidavits.
The applicable section of the CPLR is § 2309(a) and (c). A certificate of conformity is an acknowledgment that a legal document conforms to the law of the place where it is taken. CPLR Section 2309(c) in conjunction with RPL Sections 299 and 311, allows an oath or an affirmation taken outside of the state administered by any person authorized to take acknowledgments of deeds under the real property law. CPLR Section 2309(c) states that “an oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.”
CPLR § 2309 thus adopts the requirements of RPL § 299 and § 311, which govern acknowledgment of deeds and authentication of acknowledgments outside the state. RPL 299(3) specifically designates a notary public as a person eligible to acknowledge deeds outside of the state of New York. RPL § 311(5) describes the limitations for a certificate of authentication “... except as provided in this section, no certificate of authentication shall be required to entitle a conveyance to be read in evidence or recorded in this state when acknowledged or proved before any officer designated in section two hundred ninety-nine or in section three hundred one of this chapter to take such acknowledgment or proof.”
As Professor David I. Siegel states in N.Y. Practice, (2d ed), this oath ... as long as it is, it will be backed, at least theoretically, by the perjury penalties in the Penal Law, which defines “oath” to include “an affirmation and every other mood authorized by law of attesting” to what is said. This affirmation, by the way, is a form of oath, duly taken before one qualified to administer an oath, and should not be confused with the “affirmation” authorized by CPLR 2106.”
In this case, the statements of both witnesses were sworn to before a notary public and then subsequently, the attorney affirmed that the “oath” was performed in accordance with the laws of the state of Connecticut. The “affidavit of merit” for NANCY ALPIZAR is a certificate of conformity. The Court's review of the content of the “affidavit of merit” reveal that it is a certificate of conformity; it was merely given the wrong title in the caption.
This court has also reviewed the case precedent cited by Hartford Insurance Company and is in accord. The absence of a proper certificate of conformity is not fatal to this motion but is “a mere defect in form which can be given nunc pro tunc effect once properly acknowledged.” ( JP Morgan Chase Bank, N.A. v. S.I. Wood Furniture, 34 Misc.3d 1214(A), 946 N.Y.S.2d 67 [Sup. Ct, Kings County, 2012] ); Hall v. ELRAC, 79 AD3d 427, 913 N.Y.S.2d 37 [NY A.D. 1st Dept., 2010]; Betz v. Daniel Conti, Inc., 69 AD3d 545, 892 N.Y.S.2d 477 [NY A.D.2d Dept., 2010]; Matapos Tech. Ltd. v. Compania Andina De Comercio Ltd., 68 AD3d 672, 891 N.Y.S.2d 394 [NY A.D. 1st Dept., 2009]; Moccia v. Carrier Car Rental, Inc. 40 AD3d 504, 837 N.Y.S.2d 67 [NY A.D. 1st Dept., 2007]; Smith v. Allstate ins. Co ., 38 AD3d 522, 832 N.Y.S.2d 587 [NY A.D. 2nd Dept., 2007]; Falah v. Stop & Shop Cos. Inc., 41 AD3d 638, 838 N.Y.S.2d 639 [NY A.D.2d Dept., 2007) ]; Sparaco v. Sparaco, 309 A.D.2d 1029, 765 N.Y.S.2d 6683 [NY AD3d Dept., 2003]; Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 83, 548 N.Y.S.2d 98 [NY AD3d Dept., 1989]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C2309:3 at 348).
As important, our courts, pursuant to CPLR § 2001, have the authority, at any stage of an action, to permit a mistake, omission, defect or irregularity, to be corrected and disregarded, upon such terms as may be just if a substantial right of a party is not prejudiced.
In our case, the Plaintiff has not disputed the authenticity of the notary public or the substance of the certificate of conformity. The Plaintiff has also not made any allegations of any prejudice or undue hardship resulting from this defect and the record in this action does not support any finding of prejudice or hardship to the Plaintiff. As Judge Demarest so aptly stated in JP Morgan Chase N .A. v. S.I. Wood Furniture Corp., supra, “inasmuch as the content of the documents submitted, as opposed to their form, is what is critical to the determination of this motion, [Plaintiff] cannot be permitted to seize upon any technical requirements of CPLR 2309(c) to create delay and avoid [dismissal] ) see Falah, 41 AD3d at 639;Smith, 38 AD3d at 523;Nandy, 155 A.D.2d at 834). Consequently, this Court deems the two certificates of conformity executed by ALAN J. CHANDLER, ESQ. dated June 30, 2011 admissible and any defect therein disregarded.
The court has reviewed the other claims by the Plaintiff of alleged factual discrepancies' and finds that they are without merit.
For all of the reasons described above, the Plaintiff's motion for summary judgment is denied, the Defendant's motion for summary judgment is granted and the complaint is dismissed with prejudice.
A courtesy copy of this decision and order shall be mailed by the court to both parties.
The Defendant shall submit a judgment of dismissal to the Clerk of the Court and upon issuance thereof, shall serve a copy of the judgment and this order and decision with notice of entry on the Plaintiff within 45 days thereafter.
This constitutes the decision and order of this court.