Eden Med., P.C. v Eveready Ins. Co.

[*1] Eden Med., P.C. v Eveready Ins. Co. 2010 NY Slip Op 50265(U) [26 Misc 3d 140(A)] Decided on February 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-256 K C.

Eden Medical, P.C., a/a/o SHELLY WHITE CARRINGTON, Appellant,

against

Eveready Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for an order compelling defendant to appear for an examination before trial. Defendant cross-moved, based upon an affirmed peer review report, for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. In opposition to defendant's cross motion, plaintiff asserted that the peer review report annexed to defendant's cross motion was deficient in that it contained a stamped signature and was not in compliance with CPLR 2106. In reply, defendant submitted an affidavit from the peer review doctor in which she stated that she had "personally applied the signature on the peer review report." The Civil Court denied plaintiff's motion and granted defendant's cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted defendant's cross motion, arguing solely that the signature on the peer review report was a stamped facsimile signature.

When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (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]). However, in the instant case, plaintiff's mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had "personally applied the signature on the peer review report." In light of the foregoing, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 19, 2010