Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Upon the foregoing cited papers, pursuant to CPLR §3212(g), the Decision and Order on Defendant's Motion for Summary Judgment is as follows:

Plaintiff raised objections as to several of Defendant's affidavits including the claim specialist's and the SIU's, as being inadmissible for improper notarization pursuant to Colin Clarke, M.D., P.C. v. Scottsdale Ins. Co., 45 Misc 3d 131(A), 3 NYS 3d 284 (NY App Term 2nd 2014). In Clarke, the App Term 2nd held that the affidavits were in improper admissible form; "the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity" (id. at 131A, citing Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 AD 529 [2d Dept 1911]; cf. Collins v AA Trucking Renting Corp., 209 AD2d 363 [1st Dept 1994]). However, this language is in the form of an acknowledgment as opposed to a sworn to before me jurat. In Galetta the acknowledgement of signature was for prenuptial agreements "by the parties and acknowledged or proven in the manner required to entitle a real estate deed to be recorded" (Galetta at 191, citing Domestic Relations Law § 236 [B] [3]). In Fryer and Gross, acknowledgement of signature of title holder for Deed transfers.

In contrast, Collins presents the case of written statements of sworn truths or affidavits, where the Court held:

"While defendant does not say in either statement that he had been sworn, he does say that he has read the statements, and they are 'true, factual and voluntarily given'. In addition, both statements contain the jurat and stamp of a notary public, who, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law"

(Collins v AA Trucking Renting Corp., 209 AD2d 363 [1st Dept 1994], citing Matter of Cubisino v Cohen, 47 NYS2d 952, 954 [1944], affd 267 App Div 591; see also, Matter of Weinbaum, 43 Misc 2d 991, 995, app dismissed 24 AD2d 632, lv dismissed 16 NY2d 1078). Collins further states, "There is no specific form of oath required in this State, other than that it be 'calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [sic] religious or ethical beliefs'" (id., citing CPLR 2309 [b], see also General Construction Law § 36). Notably, Clarke has not been found to be considered in subsequent appellate matters relevant to proper notarization, thus it is opined, Clarke is an outlier. Whereas, Collins has been cited as precedent to uphold the propriety of the jurat and notary stamp with the sworn to before me language without recitation of personally appeared to before me which is required in an acknowledgement pursuant to Domestic Relations, Real Property and Estates Powers and Trusts Laws (see Young v Sethi, 188 AD3d 1339, 1341 [3d Dept 2020]). A notarial acknowledgement and a notarial jurat are two distinct forms of notarizations.^[FN1]

"Contrary to the plaintiff's contention, the defendant driver's affidavit, which contained a jurat stating that the affidavit was '[s]worn to before" a notary public, who signed and stamped the document, should have been considered in determining the motion'" (Karim v Proline Rental, LLC, 222 AD3d 851, 852 [2d Dept 2023]), citing Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2d Dept 2010]; Feinman v Mennan Oil Co., 248 AD2d 503 [2d Dept 1998]). "Contrary to the defendants' contentions, the affidavit of the plaintiff and the affidavit of the plaintiff's translator submitted by the plaintiff in support of his motion were in admissible form" (Shanyou Liu v Joerg, 223 AD3d 762, 763-764 [2d Dept 2024], citing Furtow at 764; see also Feinman at 504). Accordingly, in this instant matter, Plaintiff's objections to Defendant's affidavits containing sworn to before me notarial jurat with stamp, is rejected. Defendant's affidavits are hereby deemed admissible and are considered for the Defendant's motion for summary judgment. Defendant has satisfied its burden for judgment as a matter of law through the admissible submitted affidavits, affirmations of non-appearance, and proofs of mailing. Defendant establishes the timely mailing of its Examinations Under Oath scheduling letters and denials, and Plaintiff's failure to appear for two scheduled Examinations Under Oath. Upon the shifting of the burden for rebuttal, Plaintiff failed to raise a scintilla of a triable issue of fact.

Arguendo, Defendant contended, where court had found that the affidavits were inadmissible for defect in the form of the notarial jurat, yet still Plaintiff waived its time to object pursuant to CPLR 2101 (f). Defects in form shall be objected to within 15 days of receipt by returning the offending documents with statements of specific objections attendant thereto, which Plaintiff failed to do. Nevertheless, the court maintains discretion to excuse defects in the [*2]form of documents. "A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given" (CPLR 2101 [f]).

For the foregoing reasons, Defendant's Motion for Summary Judgment is hereby Granted. Case is Dismissed with prejudice.

This Constitutes Decision and Order of This Honorable Court.