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Bonavera Acupuncture, P.C. As Assignee of Dillon Kaldon, Appellant v. Geico-- Indemnity Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 11, 2013

BONAVERA ACUPUNCTURE, P.C. AS ASSIGNEE OF DILLON KALDON, APPELLANT, --
v.
GEICO-- INDEMNITY CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 14, 2010.

Bonavera Acupuncture, P.C. v GEICO Indem. Co.

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order denied plaintiff's motion for summary judgment on the unpaid balance of the complaint in the principal sum of $814.02.

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment on the unpaid balance of the complaint in the principal sum of $814.02 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's unopposed motion for summary judgment on the unpaid balance of the complaint in the principal sum of $814.02 on the ground that "the affiant's signature was not properly notarized." The record in this case does not indicate that the notary who executed the jurat at the end of the affidavit, submitted in support of plaintiff's motion for summary judgment, acted without jurisdiction or failed to carry out the duties required by law (see Feinman v Mennan Oil Co., 248 AD2d 503, 504 [1998]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). The affidavit recited that the affiant was "duly sworn . . . under an awareness of the penalties of perjury" and stated that the affidavit was "sworn to before" the notary, who signed and stamped the document. The law does not require that a document drafted on one date be signed and notarized on that date. Accordingly, on the record presented, we find that the affidavit was in admissible form and should have been considered by the Civil Court (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429 [2010]; Sparaco v Sparaco, 309 AD2d 1029, 1030 [2003]; Feinman, 248 AD2d at 504; Collins, 209 AD2d at 363). Moreover, the affidavit in question was sufficient to establish plaintiff's prima facie case (see CPLR 4518 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As defendant failed to oppose the motion, the Civil Court should have granted plaintiff's motion.

Accordingly, the order is reversed, plaintiff's motion for summary judgment on the unpaid balance of the complaint in the principal sum of $814.02 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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