December 19, 2007

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)

Headnote

The court considered the fact that CPT Medical Services, P.C., as the assignee of Jason King, was seeking first party no-fault benefits from New York Central Mutual Fire Insurance Co. for diagnostic testing. The issue decided was whether the diagnostic testing giving rise to the plaintiff's claim for first party no-fault benefits lacked medical necessity. The court held that defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence that the diagnostic testing was not medically necessary. In opposition, the plaintiff relied upon an attorney's affirmation accompanied by a single, unsworn and undated doctor's report, which was not properly before the court and should not have been considered. Additionally, even if considered, the unsworn report of the plaintiff's doctor was insufficient to defeat summary judgment.

Reported in New York Official Reports at CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 27526 [18 Misc 3d 87]

Accepted for Miscellaneous Reports Publication

AT1

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

As corrected through Wednesday, March 19, 2008

[*1]

CPT Medical Services, P.C., as Assignee of Jason King, Respondent,
v
New York Central Mutual Fire Insurance Co., Appellant.

Supreme Court, Appellate Term, First Department, December 19, 2007

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Ioanna Olivia Zevgaras of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**18 Misc 3d at 228} OPINION OF THE COURT

Per Curiam.

Order, dated June 16, 2006, reversed, with $10 costs, defendant’s motion for summary judgment granted, and complaint dismissed. The clerk is directed to enter judgment accordingly.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer’s affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff’s claim for first party no-fault benefits lacked medical necessity. In opposition, plaintiff relied upon an attorney’s affirmation accompanied by a single, unsworn and undated doctor’s report, which was not properly before the court and should not have been considered (see Grasso v Angerami, 79 NY2d 813 [1991]; Black v Regalado, 36 AD3d 437 [2007]; Henkin v Fast Times Taxi, 307 AD2d 814 [2003]). While a physician’s affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]), an attorney’s affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence. In any event, even if considered, the unsworn report of plaintiff’s doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

McKeon, J.P., McCooe and Davis, JJ., concur.