Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51540(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered March 15, 2007, deemed from a judgment entered April 23, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 15, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,328.63.

Judgment affirmed without costs.

In this action by a medical equipment provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

Since defendant does not challenge plaintiff’s establishment of its prima facie case, we do not pass upon the propriety of the determination of the court below with respect thereto.

In opposition to plaintiff’s motion for summary judgment, defendant was required, in order to raise a triable issue of fact as to medical necessity, to proffer proof in admissible form (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In its opposing papers, defendant submitted an affirmed peer review report which stated that there was a lack of medical necessity for the medical equipment provided by plaintiff. In its reply papers, plaintiff asserted that the peer review report upon which defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a [*2]facsimile of the peer reviewer’s signature. Although defendant argues that plaintiff’s contention was improperly raised for the first time in plaintiff’s reply papers, the reply affirmation from plaintiff’s counsel was responsive to defendant’s papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff’s motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor’s signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). Accordingly, the judgment is affirmed.

We note that the affirmation by Dr. Curley, annexed to defendant’s reply brief on appeal, may not be considered by the court as it is dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Rios, J.P., and Pesce, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate the order entered March 15, 2007 and deny plaintiff’s motion for summary judgment.

A simple review of the record reveals that contrary to the holding of the lower court, this defendant did fully comply with the no-fault regulations by timely sending a NF-10 denial of claim form which contained the specific reason for denial, i.e, a peer review report.

It is, however, understandable that the lower court ruled as it did in view of the majority decision of the Appellate Term in the case of A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co., 12 Misc 3d 30 [App Term, 2d & 11th Jud Dists 2006]) which found such grounds for denial of claim to be insufficient.

Subsequent to the lower court’s ruling, the Appellate Division reversed the majority’s holding in this Court and found that the regulation means what it says and the statement that a claim is being denied based upon a peer review report is sufficient (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. 39 AD3d 778 [2007]).

Here, on appeal, my colleagues note that plaintiff in its reply papers timely raised the issue concerning whether or not a facsimile signature of Dr. Curley that was affixed to the peer review report was sufficient to qualify that report as “admissible” evidence. They reached this conclusion based upon the fact that the peer review report was submitted to the court in the opposition papers, and therefore plaintiff addressed the “signature” issue at the earliest possible opportunity. There were no further papers to be submitted to the court and therefore there was no response by defendant.

Notwithstanding, on appeal, defendant proffered an affirmation by Dr. Curley in which he states, under penalty of perjury, that his “facsimile” signature can only be affixed to a document by him personally and only by the use of a “secure password…and no other individual, either under my employ or otherwise, has the authority or ability to apply the signature.”

Whereas the assertion by the majority that Dr. Curley’s affirmation is “dehors” the record and should not be considered might technically be correct, it is also true that Dr. Curley did not have an opportunity or a reason to draft this affirmation until plaintiff contested the propriety of his “electronic” signature in its reply. Clearly, this appeal is the first opportunity defendant had to respond to the issue raised by plaintiff.
Decision Date: July 10, 2008