You remember, Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 20098 (App. Term, 2nd, 11th, and 13th Jud. Dists., 2010). The Appellate Term published a decision, then took it back.
Apparently they, like many of us, have learned to copy and paste.
Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 50650(U) (App. Term, 2nd, 11th, and 13th Jud. Dists., 2010)
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] ยง 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.
Does anyone hear that in the distance? It sounds like a powerful rider, with a bare chest. He must be riding a hairy beast with an adorable accent. Back again to save the day?
