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 report of a Board Certified Orthopedic Surgeon —Dr. Pae — who opined that based upon his review of all the documentation provided, the LSO provided by plaintiff was medically unnecessary. ^[FN1] In opposition to Geico's motion, plaintiff attached an affidavit from Dr. Eltaki — an anesthesiologist - to rebut the findings of Dr. Pae .

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 hence failed to lay requisite foundation to rebut defendant's physician's affidavit). [*2]

A review of Dr. Eltaki's curricula vitae reveals that he has a familiarity with the internal medicine. However, neither Dr. Eltaki's curricula vitae nor his affidavit mention any training in orthopedic medicine or orthopedic surgery and his affidavit does not rebut the specific findings by Dr Pae that there was no lumbar spine instability in this particular patient to warrant the LSO and that the LSO's restrictions on movement is counterproductive to the necessity of early range of motion, exercise and mobility. As such, Dr. Eltaki's affidavit is of no probative value and summary judgment must be granted to defendant.

This constitutes the Decision and Order of the Court.

DATED: January 3, 2014

_____________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASN by_________on________