Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co.

[*1] Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co. 2010 NY Slip Op 50650(U) [27 Misc 3d 131(A)] Decided on April 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-87 Q C.

Park Slope Medical and Surgical Supply, Inc. as assignee of FENTON CLAYTON, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 27, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant's cross motion for summary judgment as sought dismissal of the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter of defendant's cross motion.

In this action by a provider seeking assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment
dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court denied both plaintiff's motion and defendant's cross motion, finding that the sole issue for trial was the medical necessity of the supplies provided. Defendant appeals, arguing that its cross motion for summary judgment dismissing the complaint should have been granted because the doctor's affirmation submitted by plaintiff in opposition to defendant's cross motion was not in admissible form and was otherwise insufficient to rebut defendant's peer review report.

We find that plaintiff's doctor's "affirmation" submitted in opposition to defendant's cross motion, if admissible, is sufficient to demonstrate a triable issue of fact as to medical necessity. However, defendant argued, before the Civil Court and on appeal, that plaintiff's doctor's "affirmation" is not admissible because it impermissibly bears a stamped facsimile of the doctor's signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted 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. 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]). While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff's doctor's "affirmation," which will determine whether the "affirmation" was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant's prima facie showing upon its cross motion was rebutted.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of plaintiff's doctor's affirmation and for a new determination thereafter of defendant's cross motion.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: April 09, 2010