Tuesday, June 24, 2008

What's In a Name? -- Appellate Term Rejects Affirmation of Unidentified Attorney

SP Med., P.C. a/a/o Dong Sheng Zheng v. Country-Wide Ins. Co.
(App. Term, 2nd Dept., decided 6/12/2008)

Various New York courts have previously held that attorney affidavits or affirmations may be used to sponsor or submit documents, transcripts, etc., which provide evidentiary proof in admissible form, even if the attorney lacks personal knowledge of the facts contained in those attachments. In this case, plaintiff's application to vacate a master arbitrator's award was supported by a petition and attorney's affirmation, with attached exhibits.

In REVERSING the Kings County Civil Court's order granting the medical provider's petition, the Appellate Term found that the papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief:

Petitioner submitted a document that was denominated an "Affirmation in Support." Said document contained the following statements:

"The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, states as follows: Affirmant is associated with the firm of Gary Tsirelman P.C., the attorney of record for the Petitioner" (emphasis added).

The last page of the document contains the printed name of petitioner's law firm, Gary Tsirelman, P.C., as attorneys for petitioner. It also contains a signature line with an indecipherable pen marking, which purports to be a person's signature. Immediately below this "signature" is a listing of three printed names, each one next to a small box to be "checked off." However, not one of the three listed names has been "checked off" on this document. In addition, the document was not affirmed "to be true under the penalties of perjury" (CPLR 2106). Indeed, the attorney who signed the document, if that be the case, merely indicates that he or she "states as follows," which is insufficient under the law (citations omitted). Consequently, there is no proof of the name of the attorney who generated the document, and the document is insufficient as an affirmation.

Such are the perils of boilerplate form work. Check please.

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