Med-Tech Prods., Inc. v Statewide Ins. Co. (2012 NY Slip Op 50584(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered October 14, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 14, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a hearing in accordance with the decision herein and a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant opposed plaintiff’s motion and cross-moved, based upon six “affirmed” peer [*2]review reports, for summary judgment dismissing the complaint on the ground of lack of medical necessity, for the supplies provided to plaintiff’s assignor. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from its attorney, who argued, among other things, that the doctor’s signatures on the peer review reports were stamped or electronically generated.

We find that defendant’s peer review reports, if admissible, are sufficient to demonstrate a lack of medical necessity, which showing plaintiff failed to rebut. However, plaintiff argued before the Civil Court, and again on appeal, that defendant’s peer review reports are not in admissible form because they impermissibly bear a stamped facsimile of the doctor’s signature. Such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (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]). While the motions for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the doctor’s signatures appearing on defendant’s peer review reports, which will determine whether the peer review reports were in admissible form (Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant rebutted plaintiff’s prima facie case and demonstrated defendant’s entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of defendant’s peer review reports and for a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

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