TAM MEDICAL SUPPLY CORP v. HEREFORD INSURANCE CO (2018)

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered April 1, 2016. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that the action is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff's contention, its opposition to defendant's cross motion failed to raise a triable issue of fact, as plaintiff's opposition was based upon what purported to be an “affidavit” from plaintiff's owner which was neither signed nor sworn to before a notary public (see e.g. Healthy Way Acupuncture, P.C. v. Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Consequently, we do not pass upon whether that “affidavit” would have been sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.