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New Millennium Psychological Services, P.C. As Assignee of Christine Waters v. Unitrin Advantage Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 7, 2011

NEW MILLENNIUM PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF CHRISTINE WATERS,
APPELLANT,
v.
UNITRIN ADVANTAGE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 8, 2010, deemed from a judgment of the same court entered January 26, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 8, 2010 order granting defendant's motion for summary judgment to the extent of dismissing plaintiff's claim for services rendered on October 30, 2007 and November 13, 2007 in the total sum of $1,026.51, dismissed that claim.

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co.

Decided on July 7, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on July 7, 2011

PRESENT:STEINHARDT, J.P., GOLIA and RIOS, JJ

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court entered January 8, 2010 as granted defendant's motion for summary judgment to the extent of dismissing plaintiff's claim for services rendered on October 30, 2007 and November 13, 2007, in the total sum of $1,026.51. A judgment dismissing that claim was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff argues that the "affidavit" of its psychologist, submitted in opposition to defendant's motion for summary judgment, was sufficient to raise a triable issue of fact. However, the "affidavit," which contained a notary public's stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public (cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). While there is no specific form of oath required in New York (see General Construction Law § 36), an oath is to be "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs" (CPLR 2309 [b]). We find that inasmuch as the omissions in plaintiff's submission constituted more than a mere defect in form, plaintiff's "affidavit" failed to meet the requirements of CPLR 2309 (b). Accordingly, the judgment is affirmed.

Steinhardt, J.P., Golia and Rios, JJ., concur.

20110707

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