February 19, 2010

Eden Med., P.C. v Eveready Ins. Co. (2010 NY Slip Op 50265(U))

https://www.beynensonlaw.com/case-law/eden-med-p-c-v-eveready-ins-co-2010-ny-slip-op-50265u/

Court: Appellate Term, Second Department
Decided: February 19, 2010
Citation: 2010 NY Slip Op 50265(U) · 26 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 5 later decisions (see Cited by)
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140(A), 2010 NY Slip Op 50265(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's unsupported assertion that a peer review report bore a stamped facsimile signature raised no factual issue. The insurer cross-moved for summary judgment on medical-necessity grounds in response to the provider's motion to compel a deposition. The provider objected that the report did not comply with CPLR 2106, and its sole appellate argument concerned the signature. Although a properly supported stamped-signature allegation generally presents a factual issue not resolvable from motion papers alone, the provider gave no basis for its belief. The peer reviewer also submitted a reply affidavit stating that the signature had been personally applied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion and dismissing the complaint.

Reported in New York Official Reports at Eden Med., P.C. v Eveready Ins. Co. (2010 NY Slip Op 50265(U))

[*1]

Eden Med., P.C. v Eveready Ins. Co.

2010 NY Slip Op 50265(U) [26 Misc 3d 140(A)]

Decided on February 19, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-256 K C.

Eden Medical, P.C., a/a/o SHELLY WHITE CARRINGTON, Appellant,
against
Eveready Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for an order compelling defendant to appear for an examination before trial. Defendant cross-moved, based upon an affirmed peer review report, for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. In opposition to defendant’s cross motion, plaintiff asserted that the peer review report annexed to defendant’s cross motion was deficient in that it contained a stamped signature and was not in compliance with CPLR 2106. In reply, defendant submitted an affidavit from the peer review doctor in which she stated that she had “personally applied the signature on the peer review report.” The Civil Court denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted defendant’s cross motion, arguing solely that the signature on the peer review report was a stamped facsimile signature.

When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 19, 2010

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Upheld summary judgment for the insurer on its affirmed peer review because the provider's bare claim that the reviewer's signature was a stamped facsimile raised no issue of fact, and the reviewer swore she signed it personally.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

Mani Med., P.C. v Eveready Ins. Co. (2008 NY Slip Op 52697(U))The insurer's stamped peer reviews failed to raise a triable issue because the record did not establish the doctor's authorization.

Cited by

A label shows how the later decision treated this one.

Quality Health Prods. v Geico Gen. Ins. Co. (2011 NY Slip Op 52299(U)) FollowedThe insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Queens Med. Supply, Inc. v Geico Gen. Ins. Co. (2011 NY Slip Op 52284(U)) FollowedThe peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction.
Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 50587(U)) FollowedThe provider's conclusory challenge to the peer reviewer's signature did not raise a factual issue defeating the insurer's summary judgment motion.
Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51230(U)) FollowedThe insurer established lack of medical necessity on two claims and the assignor's IME nonappearance on the third.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 50934(U)) FollowedAn insurer need not attach the medical records reviewed by its peer reviewer to its summary judgment motion.

Similar decisions

Med-Tech Prods., Inc. v Statewide Ins. Co. (2012 NY Slip Op 50584(U))The provider's challenge to allegedly stamped signatures on peer reviews required a hearing to determine the reports' admissibility.
Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 51759(U))The provider's unsupported claim that a peer review bore a stamped signature failed to raise a factual issue about admissibility.
Eden Med., P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51098(U))The insurer's unrebutted peer review established lack of medical necessity and supported dismissal of the unpaid portion of the provider's claim.
Radiology Today, P.C. v GEICO Ins. Co. (2008 NY Slip Op 28259)The insurer's peer review report failed to raise a medical-necessity issue because its stamped signature lacked proof of the doctor's authorization.
Jamaica Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50247(U))The peer reviewers' facsimile signatures were placed by the doctors or at their direction, defeating the provider's admissibility objection.