Jesa Med. Supply, Inc. v GEICO Ins. Co., 2009 NY Slip Op 29386 (Civ Ct City NY, Kings County, 2009)
The defects in an attorney affirmation should not warrant summary judgment being granted in favor of plaintiff. An affirmation of an attorney has no probative value. The affirmation itself, which is purported to be that of one person, but signed by another is worthless and a nullity. See, A.B. Medical Services a/a/o Kats v. CNA Ins. Co., 2 Misc 3d 138[A], 784 NYS2d 918 [AT 2nd & 11th Jud. Dists., 2004]. However, the defendant’s [*3]cross-motion cannot and does not stand alone on an attorney affirmation. The supporting document to the cross-motion must come from a person with actual knowledge of the facts to the case. The supporting affidavit to defendant’s cross-motion which is of probative value is that of Leonard Delgiudice, an employee of GEICO. The court has, without giving consideration to the attorney affirmation, made its determination based upon the supporting affidavit of Mr. Delgiudice, and the annexed documents to the cross-motion such as the peer review and denials. Thus, the court finds plaintiff’s arguments that the papers are defective to be without merit, in light of the fact that the motions can be decided without the attorney affirmation which is of no probative value.
***The claim for $183.00 was partially paid by the insurer, in the amount of $167.04 leaving a balance of $16.46. As stated above, the claim was denied on two grounds lack of medical necessity and fee schedule. The denial shows the reduction of the provider’s charge of $38.50 for the positioning cushion/pillow being reduced to $22.04, thereby leaving the balance of $16.46. Inasmuch as the defendant has failed to proffer sufficient evidence to establish as a matter of law that amounts charged in said claims were in excess of the amounts permitted by the fee schedule, plaintiff is entitled to summary judgment on its claim for $16.46.
Defendant failed to proffer sufficient evidence to establish as a matter of law the amounts charged for said claims were in excess of the amounts permitted by the fee schedule. The affidavit of Leonard Delguidice fails to address how the fees were applied, and how the charged amount by the provider was in excess of the fee schedule. Rogy Medical, a/a/o Jeanmarie Calixte v. Mercury Ins. Co., 23 Misc 3d 132[A] [2 nd Dept., 2009].
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The Appellate Term has consistently held that a peer review report which bears an electronic stamp of the peer review signature is not in admissible form pursuant to CPLR ยง 2106. Radiology Today, P.C., a/a/o Lev Kemel v. GEICO Ins. Co., 20 Misc 3d 70; 864 NYS2d 664 [AT 2nd & 11th Jud. Dists., 2006]; Vista Surgical Supplies, Inc., a/a/o Melvin Beverly v. Travelers Ins. Co., 14 Misc 3d 128[A]; 836 NYS2d 491 [AT 2nd & 11th Jud. Dists., 2006]. However, in the case before this court, the defendant has annexed as part of Exhibit “D”, which is the peer review of Dr. Andrew R. Miller, an affirmation of Dr. Miller which states in paragraphs 4 & 5 thereof the following:
4.I alone have the ability to apply the signature and no other individual, either under my employ or otherwise has the authority or ability to apply the signature.
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It is this court’s opinion, that based upon the affirmation of Dr. Andrew Miller, which indicates that the peer review report which has an electronic stamped facsimile of his signature, is in fact his and applied by himself, and not by anyone else, is sufficient to establish that the signature has been acknowledged by Dr. Miller as his own. As such, the court deems the peer review to be in admissible form.
Therefore, inasmuch as the plaintiff has failed to raise an issue of fact to negate the peer review report of Dr. Andrew Miller, summary judgment should be granted in favor of the [*5]defendant. See, Crossbridge Diagnostic Radiology, P.C. v. Progressive, 0 Misc 3d 143[A] [AT 2nd & 11th Jud. Dists., 2008];Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co., 19 Misc 3d 130[A] [AT 2nd & 11th Jud. Dists., 2008].
Fortune Med., P.C. v Country-Wide Ins. Co., 2009 NY Slip Op 51932(U) (App. Term, 2nd, 2009)