Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co.

[*1] Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. 2010 NY Slip Op 50587(U) [27 Misc 3d 128(A)] Decided on March 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-283 K C.

Ortho-Med Surgical Supply, Inc. a/a/o WILSON TORRES, Appellant,

against

Mercury Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered September 10, 2008, deemed from a judgment of the same court entered December 8, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 10, 2008 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the medical supplies provided were not medically necessary. In support of its motion, defendant submitted an affirmed peer review report of its physician. Plaintiff's sole argument in opposition to the motion was the assertion that because defendant's physician had not personally signed the peer review report, defendant had failed to establish its prima facie entitlement to summary judgment. Defendant submitted a reply affirmation. The Civil Court granted defendant's motion, and plaintiff appealed from that order. The appeal is deemed to be from the judgment that was subsequently entered pursuant to the order (see CPLR 5501 [c]).

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 conclusory assertion that the peer review report contained a stamped or facsimile signature, without any indication as to why [*2]plaintiff held such belief, was insufficient to raise an issue of fact (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, we need not consider any issues raised in defendant's
reply papers. Accordingly, we find that the Civil Court properly granted defendant's motion for summary judgment, and the judgment is therefore affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010