Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered August 7, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs on condition that defendant, within 60 days of service upon it of a copy of this decision and the order entered hereon with notice of entry, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit of Maryanne Gentile, identical to the affidavit submitted by defendant in this case, accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of Connecticut. In the event that defendant fails to duly serve and file such an affidavit, the order is reversed without costs, defendant's motion for summary judgment dismissing the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

This action by a provider to recover assigned first-party no-fault benefits was commenced in February 2005. Defendant moved for summary judgment dismissing the complaint and attached the affidavit of its claims representative, who stated that defendant had received the complaint on March 1, 2005 and had received the bills at issue for the first time, by facsimile, on March 17, 2005. Defendant also annexed the proof of mailing that plaintiff had submitted to defendant along with the bills. The claims representative stated that the proof of mailing indicated that the claim forms had previously been mailed to an address at which defendant has never been located. In opposition to defendant's motion, plaintiff argued, among other things, that the acknowledgment accompanying defendant's affidavit did not comply with CPLR 2309 (c). Defendant submitted reply papers, including a certificate of conformity. The Civil Court granted defendant's motion, finding that defendant's failure to submit a certificate of conformity had been cured and that the action was premature since defendant had not received the claim forms at issue until after the lawsuit had been commenced.

Under these circumstances, we find that defendant's submissions support the determination that defendant had not received any claim forms prior to the commencement of the [*2]action. With respect to plaintiff's timely objection to the form of defendant's claims representative's affidavit, we note that while defendant permissibly sought to cure this defect by annexing a certificate of conformity to its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), the document annexed to defendant's reply papers was not made by an authorized person pursuant to Real Property Law § 299-a. Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, we affirm the order on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: November 19, 2010