Rogy Med., P.C. v Mercury Cas. Co.
2009 NY Slip Op 50732(U) [23 Misc 3d 132(A)]
Decided on April 14, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2009


2008-468 Q C.

Rogy Medical, P.C. as assignee of JEANMARIE CALIXTE, Respondent,


Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered February 15, 2008. The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment.

Order, insofar as appealed from, 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 grounds that the services rendered lacked medical necessity and that the provider billed in excess of the fee schedule. The Civil Court, inter alia, denied defendant's motion and this appeal ensued.

In support of the branch of its motion seeking summary judgment dismissing plaintiff's second cause of action, defendant submitted an affidavit of its claims representative demonstrating that it timely denied plaintiff's claim which was the subject of said cause of action (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Defendant also submitted an affirmed peer review report which stated that there was no medical necessity for the testing performed. Plaintiff argued that the report was not in admissible form as it contained the stamped signature of the peer reviewer. Although defendant did reply to this allegation, it conceded in its appellate brief that the peer review report was electronically signed by the peer reviewer. Since the record does not demonstrate that said signature was placed on the report by the doctor who performed the peer review or at his direction, said peer review report did not constitute competent evidence sufficient to establish defendant's entitlement to summary judgment as a matter of law with respect to plaintiff's second cause of action (see Radiology Today, P.C. v GEICO Ins. Co., 20 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]; see also Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). [*2]

With respect to the branch of defendant's motion seeking summary judgment dismissing plaintiff's first, third and fourth causes of action, based upon plaintiff's alleged billing in excess of the fee schedule, defendant demonstrated that it timely denied plaintiff's claims on said ground (see Residential Holding Corp., 286 AD2d 679). However, defendant did not proffer sufficient evidence to establish as a matter of law that the amounts charged in said claims were in excess of the amounts permitted by the fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., AD3d , 2009 NY Slip Op 00351 [2d Dept 2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the Civil Court properly denied defendant's motion for summary judgment (see Zuckerman v New York City Transit Authority, 49 NY2d 557 [1980]), and the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 14, 2009