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SP Med., P.C. v Country-Wide Ins. Co., 2008 NY Slip Op 51230(U) (App. Term, 2d)
The last page of the document contains the printed name of petitioner's law firm, Gary Tsirelman, P.C., as attorneys for petitioner. It also contains a signature line with an indecipherable pen marking, which purports to be a person's signature. Immediately below this "signature" is a listing of three printed names, each one next to a small box to be "checked off." However, not one of the three listed names has been "checked off" on this document. In addition, the document was not affirmed "to be true under the penalties of perjury" (CPLR 2106). Indeed, the attorney who signed the document, if that be the case, merely indicates that he or she "states as follows," which is insufficient under the law (see Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137(A), 2006 NY Slip Op 50504 [U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, there is no proof of the name of the attorney who generated the document, and the document is insufficient as an affirmation.
Vista Surgical Supplies, Inc. v American Protection Ins. Co., 2008 NY Slip Op 51229(U) (App. Term, 2d
In this action by a provider to recover assigned first-party no-fault benefits for medical supplies furnished to plaintiff's assignor, defendant timely denied plaintiff's claims upon the ground of lack of medical necessity based upon an affirmed peer review report. After this action was commenced, the parties entered into a stipulation which provided that plaintiff would be precluded from presenting evidence at trial as to medical necessity if plaintiff failed to appear for depositions. Plaintiff failed to appear for depositions and thereafter moved for summary judgment. Defendant cross-moved for summary judgment. The court below denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, holding that defendant's affirmed peer review report established that the supplies furnished by plaintiff were not medically necessary and that plaintiff was precluded from presenting rebuttal evidence as to medical necessity. This appeal by plaintiff ensued.
While plaintiff contends that it is entitled to summary judgment, on appeal, defendant asserts that the affidavit of plaintiff's corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff's [*2]corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment was properly denied (see Parochial Bus Sys.v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).
With respect to the merits of defendant's cross motion for summary judgment, defendant established that it timely requested verification and, that, upon receipt of such verification, defendant timely denied plaintiff's claim based on an affirmed peer review report. Since the peer review report submitted by defendant in support of its cross motion established prima facie that the supplies furnished by plaintiff were not medically necessary and plaintiff did not present any evidence refuting defendant's prima facie showing, the court below properly granted defendant's cross motion for summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Infinity Health Prods. v Amex Assur. Co., 2008 NY Slip Op 51233(U) (App. Term, 2d)
The lower court decision was reversed per Dan Med (nothing groundbreaking), however, a concurring opinion is worth noting:
Steinhardt, J., concurs in the result in the following memorandum:
While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff's motion for summary judgment.
Alur Med. Supply, Inc. v Country-Wide Ins. Co., 2008 NYSlipOp 51234(U) (App. Term, 2d)
Reversed the lower court's granting summary judgment per Dan Med. There is a little more to this case than in Infinity Health. Note the concurring opinion.
Turning to the merits of defendant's cross motion for summary judgment, defendant based its denial of plaintiff's claim upon an affirmed report of an independent medical examination (IME). The IME report did not address the necessity for medical supplies and, therefore, did not establish prima facie that the supplies provided by plaintiff were not medically necessary (cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 19 Misc 3d 130[A], 2008 NY Slip Op 50534[U] [App Term, 2d & 11th Jud Dists 2008]; Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50327[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant is not entitled to summary judgment upon its cross motion.
Pesce, P.J.,and Golia,J., concur
Steinhardt, J., concurs in a separate memorandum.
Steinhardt, J., concurs in the result in the following memorandum:
While I agree with the result reached by the majority, I do so for other reasons. I find that defendant has come forward with triable issues of fact sufficient to defeat plaintiff's motion for summary judgment.
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