Affidavits and Out of State Witnesses

Saturday, May 6, 2006 | 0

By Larry Rogak

Though this case and comments are about "no fault" motor vehicle accident benefits, the lesson about out of state witness affidavits is applicable to all evidentiary issues in any hearing...

Capri Medical P.C. v. New York Central Mutual Fire Ins. Co., NYLJ 4/13/06 (Civil Court, Kings County) (THOMAS, j)

In this no-fault benefit suit, plaintiff moved for summary judgment.

In support of its motion, plaintiff submitted an assignment of benefits form, denial of claim forms, and an affidavit from defendant's billing manager, Yelena Medvedik, stating that the carrier issued denials more than thirty days after receipt of the bills. The court found that plaintiff had established its prima facie entitlement to summary judgment and therefore the burden shifted to defendant to demonstrate a triable issue of fact to withstand summary judgment.

An untimely denial precludes defendant from interposing most defenses including the defense of lack of medical necessity. However, an untimely denial does not preclude a defendant from asserting the defense that the injuries do not arise out of a covered accident or a defense premised on staged accident fraud. To withstand summary judgment, the insurer must come forward with proof in admissible form to establish the basis for its belief that there is no coverage. A "founded belief" cannot be based upon unsubstantiated hypotheses and supposition.

The denial of claim forms in this case stated as the reason for denial: "Our investigation, including the results of a low impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of March 23, 2003, and are inconsistent with a collision of this nature. Therefore, our company hereby denies your entire no-fault claim based on the fact that the personal injuries do not arise out of the auto accident referred to above. The medical necessity of services provided has not been established."

To support its claim of a lack of causal nexus between the accident and the injuries, defendant submitted the affidavit of Alfred Cipriani, a technical consultant employed by SEA Limited, a consulting company which prepared an accident analysis report (low impact study) for defendant. The accident analysis report accompanied the affidavit.

Plaintiff argued that Mr. Cipriani's affidavit was not in admissible form as it was executed in Maryland, before a Maryland notary, and fails to comply with CPLR 2309 (c). Furthermore, plaintiff stated that defendant failed to offer any evidence that the automobile collision was based on fraud.

The Court held that "One opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to raise a triable issue of fact. Here, in opposition to the motion, defendant elies upon an affidavit that is signed and notarized outside of New York and an accident analysis report which is annexed to the affidavit. The low impact study itself is unsworn and appears to incorporate hearsay evidence such as a Police Accident Report and refers to a transcript of a recorded statement of assignor Tumarov which is not annexed to the report."

Pursuant to CPLR 2309 (c), "An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation."

There is a distinction between "a certificate of authentication which certifies the identity and authority of the person who took the acknowledgment of proof" and a certificate of conformity which "certifies that the manner in which the acknowledgment or proof was taken conforms with the laws of the appropriate jurisdiction." An affidavit that is signed and notarized outside New York State is required to be accompanied by a certificate of conformity.

"Therefore," held the Court, "this court concurs with plaintiff and finds defendant has failed to submit any competent evidence to support its defense that the injuries are not related to the accident. The affidavit is insufficient pursuant to CPLR 2309 (c). The Accident Analysis Report is inadmissible on its own or as an attachment to the affidavit."

"Accordingly, plaintiff's motion for summary judgment is granted."

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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