Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), entered February 13, 2007. The order denied plaintiff's motion for summary judgment.

Order reversed without costs and plaintiff's motion for summary judgment granted.

In this action to recover the principal sum of $1,970, the record contains an "answer" which is annexed to the summons. Plaintiff moved for summary judgment, alleging that defendant received medical services totaling $1,970, which sum had been duly demanded but had not been paid. Defendant did not oppose the motion.

The court below denied plaintiff's motion for summary judgment on the ground, inter alia, that defendant failed to properly file an answer and, thus, plaintiff could not move for summary judgment because issue had not been joined (see CPLR 3212 [a]).

Defendant's answer should not have been rejected by the court since it is in proper form as it is affixed to the summons (UDCA 902 [a] [2]). Thus, issue was joined and the court should have considered the motion for summary judgment on the merits (see CPLR 3212 [a]).

A review of the record indicates that plaintiff made a prima facie showing that it rendered medical services to defendant, and that defendant, after receiving a demand for payment, failed to pay plaintiff the outstanding bill in the total sum of $1,970. Defendant failed to oppose the motion, and his unverified answer, which contains a conclusory allegation that he was insured at [*2]the time the services were rendered by
plaintiff, cannot be utilized in lieu of a sworn affidavit to raise a triable issue of fact to defeat the motion for summary judgment (see CPLR 105 [u]). Accordingly, plaintiff's motion for summary judgment is granted.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: May 27, 2008