During argument, the parties agreed to limit the summary judgment motion filed by defendant GEICO ("Geico") in the above-captioned matter to the following: whether plaintiff Village Medical ("Village" or "plaintiff") could defeat Geico's motion for summary judgment based upon lack of medical necessity by tendering an affirmed report of a doctor who is certified in a speciality other than the speciality of the doctor who conducted the peer review for the defendant. Specifically, in support of its motion for summary judgment, GEICO proffered the affirmed peer review of Dr. Ralph K. Della Ratta - a diplomate with the American Board of Internal Medicine - — who opined that based upon his review of all the documentation provided, the EMS unit, TENS kit and belt, and back massager were medically unnecessary. ^[FN1] In opposition to Geico's motion, plaintiff attached an affidavit from Dr. Eltaki — an anesthesiologist - to rebut the findings of Dr.Ratta .

Defendant implicitly concedes that plaintiff can produce the affidavit/report of a doctor in a speciality other than the one of defendant's peer review doctor in order to defeat a motion for summary judgment. In the case attached by defendant -- Postlethwaite v. United Health Services Hospital, 5 AD3d 892 (3rd Dept. 2004) - the Third Department specifically recognized that "(w)hile it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field," Id at 895 citing Fuller v. Preis, 35 NY2d 425 (1974), the witness still must be possessed of the "requisite skills, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable." 5 AD3d at 895. Thus, where a doctor opines "outside his...area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered." Ozugowski v. NYC Health & Hospitals Corp., 90 AD3d 875, 877 ( 2d Dept. 2011); Mustello v. Berg, 44 AD3d 1018-19 (2d Dept 2007); Shari Behar v. Coren, 21 AD3d 1045 (2d Dept. 2005). In order to rebut a motion for summary judgment, the affidavit of the plaintiff's expert physician must set forth the requisite foundation as to the expert's knowledge and familiarity with the speciality area discussed by the defendant's expert. Ozugowski, supra (plaintiff's expert witness in internal medicine and cardiology failed to lay a foundation for his opinion in area of psychiatry); Shectman v. Wilson, 68 AD3d 848 ( 2d Dept. 2009) ( affidavit of plaintiff's expert failed to mention any specific training or expertise in pediatrics, psychiatry, or particularized disabilities of infant plaintiff and [*2]hence failed to lay requisite foundation to rebut defendant's physician's affidavit).

A review of Dr. Eltaki's curricula vitae reveals that he is familiar with the speciality of e internal medicine. Dr Eltaki underwent an internal medicine internship during 2004-2005 at the NY Hospital Medical center in Queens.His affidavit discusses in depth the various medical supplies at issue and why their utilization was proper in the instant matter. His affidavit in fact cites to more medical authorities than does the peer review submitted by defendant's expert.At this juncture, the court cannot rule that as a matter of law, Dr. Eltaki's training, including his internal medicine internship, does not lay a sufficient foundation for him to offer an opinion in the area of internal medicine as to the medical necessity of the supplies at issue.

However, since plaintiff chose to submit the affidavit of an anesthesiologist to defeat the motion for summary judgment, plaintiff is limited to presenting Dr. Eltaki as an expert witness should it chose to rebut the testimony of defendant's peer review doctor at trial. It would put defendant at a disadvantage to permit plaintiff to utilize the affidavit of a specialist outside the speciality of internal medicine to defeat a motion for summary judgment and then bring in a diplomate from the American Board of Internal Medicine as a rebuttal witness. Furthermore, defendant must have an opportunity at trial to voir dire Dr. Eltaki to ensure that he has a sufficient foundation to render an opinion as to the medical necessity of certain medical supplies.

As such, defendant's motion for summary judgment is denied and this case must proceed to trial. Since plaintiff failed to cross-move for summary judgment, it must prove its prima facie case. Defendant is awarded its prima facie case and must only prove lack of medical necessity at trial if plaintiff makes its prima facie case.

This constitutes the Decision and Order of the Court.

DATED: January 6, 2014

_____________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASN by_________on________