Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. 2009 NY Slip Op 51031(U) [23 Misc 3d 141(A)] Decided on May 22, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-869 K C.

Vista Surgical Supplies, Inc., a/a/o Luz Deleon, Appellant,

against

New York Central Mutual Fire Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered March 25, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant's motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant's claims representative failed to demonstrate defendant's prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant's supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant's motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In any event, as argued by plaintiff in the Civil Court and on appeal, the affirmed peer review reports defendant submitted in support of its motion for summary judgment indicate that [*2]the "signature" upon each report appears to be identical, thereby raising an issue of fact as to whether the purported signatures were in compliance with CPLR 2106 (see General Construction Law § 46; Mani Med., P.C. v Eveready Ins. Co., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U] [App Term, 2d & 11th Jud Dists 2008]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 702 [Sup Ct, NY County 1965]). Such issue of fact may not be resolved 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., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U]). Accordingly, the order is reversed and defendant's motion for summary judgment is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 22, 2009