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

[*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 This opinion is uncorrected and will not be published in the printed Official Reports.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