Tuesday, October 28, 2008

What's In an Affirmation? -- Appellate Term Confirms Master Arbitration Award Due to Legally Insufficient Attorney's Affirmation

Valentin Avanessov, Physician, PC a/a/o Azra Sabovic v. State-Wide Ins. Co.

(App. Term, 2nd Dept., decided 10/27/2008)

The no-fault litigation arena is littered with dismissals and defeats that have little or nothing to do with substance and everything to do with form, or defective form, as the case may be. Here lies another carcass.

CPLR Rule 2106, entitled, "Affirmation of truth of statement by attorney, physician, osteopath or dentist", provides:
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice 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.
Because affirmations do not need to be notarized, some litigation counsel, such as myself, prefer affirmations to affidavits. If an attorney's affirmation does not state that it is "affirmed to be true under the penalties of perjury", but only "states as follows", it is legally insufficient, so reminds the Appellate Term, Second Department, in this case.

Petitioner medical provider commenced a special proceeding pursuant to CPLR § 7511 to vacate a master arbitration award that had upheld State-Wide's denial of the provider's assigned no-fault benefits. Kings Civil granted the petition and State-Wide appealed.

In REVERSING the civil court's order and instead confirming the master arbitration award, the Appellate Term held:
The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Medical, P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). Petitioner submitted a document that was denominated an "Affirmation in Support." The only document submitted in support of the petition was one which was not affirmed "to be true under the penalties of perjury" (CPLR 2106). Indeed, the attorney who signed the document merely indicates that he "states as follows," which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the document is insufficient as an affirmation (see SP Medical, P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]).

In view of the foregoing, the petition to vacate the master arbitrator's award should have been denied. Furthermore, upon denying the petition, the court is required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). While we do not reach the remaining contentions, we note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).


Scott J. Kreppein, Esq. said...

Nice post. Very helpful.

David M. Gottlieb, Esq. said...

Only marginally helpful. I give it a 2 out 9.

Roy A. Mura said...

Probably because you blog the CPLR and know better, right Dave?

I've not seen a 0-9 scale used before, except on the phone dial. That's marginally interesting.

I wouldn't think lawyers could screw up boilerplate, but I actually saw an experienced coverage litigator's affirmation cross my desk just recently that did not use the magic words. I considered objecting on 2106 grounds but decided not to. Function of who the lawyer was and who the judge was.

David M. Gottlieb, Esq. said...

You are a hurtful hurtful man.

Roy A. Mura said...

Haha. I found another use of a 0-9 scale. Did you have some experience with a smallpox vaccination recently, Dave?

I actually wondered whether the original comment was just blog or comment spam because I wouldn't have chosen this post myself from the over 380 posts before January 14th to put "nice" and "very helpful" stickers on. So I guess I'll have to agree somewhat with your marginal assessment (or assessment of marginal helpfulness). I'd give it a solid mezza mezza 4.5.

David M. Gottlieb, Esq. said...

I've received a bunch of those "very helpful" posts from law firm spammers. Next time someone does it and it links back to a law firm, I'm going to call them out on it.

That is a helpful case. Unless someone was into no-fault, they wouldn't have seen that case--how often do you see that issue come up in other areas of the law? Although, there was a case the other day that where the plaintiff is an attorney, an affidavit must be used instead of a affirmation. Lessoff v 26 Ct. St. Assoc., LLC, 2009 NY Slip Op 00195 (App. Div., 2d 2009). I had no idea.

Scott J. Kreppein, Esq. said...

My earlier comment does seem spam-like. I have no idea why I left it, but more than likely I searched for CPLR 2106 on Google -- who knows why -- and found your post.