Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.

[*1] Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co. 2010 NY Slip Op 51442(U) [28 Misc 3d 136(A)] Decided on August 2, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-498 Q C.

Stephen Fealy, M.D., P.C. as Assignee of AUDREY ESPOSITO, Respondent,

against

State Farm Mutual Auto Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 5, 2009. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover the sum of $25,000 in assigned first-party no-fault benefits, defendant insurance company moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor's injuries were preexisting, chronic or progressive degenerative conditions which did not result from the subject accident. The occurrence which forms the subject matter of this action took place on March 20, 2007. On June 12, 2007, plaintiff, an orthopedic surgeon, performed "anterior cruciate ligament reconstruction with suprapateller pouch and tendon left knee partial debridement, medial meniscectomy [and] left medial arthroscopic patellofemoral condoplasty" on plaintiff's assignor at the Hospital for Special Surgery, for which he submitted a claim for $25,900. The claim was denied based upon an independent peer review on July 11, 2007 advising that the left knee injury was unrelated to the accident.

In support of its motion for summary judgment, defendant submitted, among other things, affirmed peer review reports and an "independent radiology report" of the MRI images of the affected area, which identified degenerative processes accounting for the conditions treated by plaintiff. In opposition, plaintiff submitted an affidavit from plaintiff's president, a "board-certified" surgeon, who had performed the procedure. After defendant served reply papers in further support of the motion, plaintiff served a sur-reply, which contained a more detailed affidavit executed by the doctor. The Civil Court denied defendant's motion, finding that plaintiff had raised issues of fact. This appeal by defendant ensued.

We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d
463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: August 02, 2010