Summary
finding a psychologist's "affidavit" with no signature attesting that psychologist was duly sworn, but containing notary public's stamp and signature attesting to swearing among other problems, was not a valid affidavit
Summary of this case from State v. AngelOpinion
No. 2010-453 Q C.
July 7, 2011.
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 that 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 plaintiffs claim for services rendered on October 30, 2007 and November 13, 2007 in the total sum of $1,026.51, dismissed that claim.
Law Office of Alden Banniettis, Brooklyn ( Jeff Henle of counsel), for appellant. Gullo Associates, LLP, Brooklyn ( Cristina Carollo of counsel), for respondent.
Before: STEINHARDT, J.P., GOLIA and Rios, JJ.
OPINION OF THE COURT
MEMORANDUM.
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 plaintiffs 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; Collins v AA Truck Renting Corp., 209 AD2d 363). 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 plaintiffs submission constituted more than a mere defect in form, plaintiffs "affidavit" failed to meet the requirements of CPLR 2309 (b).
Accordingly, the judgment is affirmed.