March 12, 2007

Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U))

Headnote

The court considered the fact that the plaintiff, Support Billing & Management Co., was seeking first-party no-fault benefits, and that their motion for summary judgment was denied by the lower court due to the presence of two peer review reports that raised an issue of fact regarding the medical necessity of the benefits. The main issue decided was whether the peer review reports, which contained facsimile signatures of the doctor who performed the reviews, were admissible as evidence. The court held that the peer review reports were not in admissible form because they only contained stamped facsimile signatures, and defendant failed to establish that they were placed there by the doctor. As a result, the plaintiff was granted summary judgment on both of its claims, and the case was remanded for a calculation of statutory interest and assessment of attorney's fees.

Reported in New York Official Reports at Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U))

Support Billing & Mgt. Co. v Allstate Ins. Co. (2007 NY Slip Op 50496(U)) [*1]

Support Billing & Mgt. Co. v Allstate Ins. Co.

2007 NY Slip Op 50496(U) [15 Misc 3d 126(A)]

Decided on March 12, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT:: PESCE, P.J., RIOS and BELEN, JJ
2005-1967 K C.

Support Billing & Management Co. a/a/o Michael Santiago, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity based upon two peer review reports. In the court below and on appeal, plaintiff argues, inter alia, that the peer review reports annexed to
defendant’s opposition papers were insufficient to establish an issue of fact because the peer review reports, purportedly executed in accordance with CPLR 2106, bore stamped facsimile signatures of the doctor who performed the peer reviews. We find that the peer review reports were not in admissible form since they only contained a stamped facsimile of the doctor’s signature which defendant failed to establish was placed thereon by the doctor (see CPLR 2106; Dowling v Mosey, 32 AD3d 1190 [2006]; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128[A], 2006 NY Slip Op 52502[U] [App Term, 2d & 11th Jud Dists]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 632 [1971]; cf. General Construction Law § 46). In the absence of proof by defendant of a meritorious defense, plaintiff is entitled to summary judgment on both of its claims. Accordingly, the matter is remanded to the court below for a calculation of statutory interest and assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: March 12, 2007