Opinion
No. 2011–375 K C.
2013-02-11
BONAVERA ACUPUNCTURE, P.C. as Assignee of Dillon Kaldon, Appellant, v. GEICO INDEMNITY CO., Respondent.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 14, 2010. 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 A.D.2d 503, 504 [1998];Collins v. AA Truck Renting Corp., 209 A.D.2d 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 A.D.3d 429 [2010];Sparaco v. Sparaco, 309 A.D.2d 1029, 1030 [2003];Feinman, 248 A.D.2d at 504, 669 N.Y.S.2d 892;Collins, 209 A.D.2d at 363, 618 N.Y.S.2d 801). Moreover, the affidavit in question was sufficient to establish plaintiff's prima facie case ( seeCPLR 4518[a]; Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 A.D.3d 644 [2008];Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128[A], 2011 N.Y. 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.