The Rogak Report: 23 Jul 2008 ** No Fault - Peer Reviews **
PEER REVIEW REPORT WITH ELECTRONIC OR FACSIMILE SIGNATURE IS NOT VALID ON SUMMARY JUDGMENT MOTION
Orthotic Surgical & Med. Supply, Inc. a/a/o Alfred Reese v. GEICO Ins. Co. 2008 NYSlipOp 51540(U) Decided on July 10, 2008 Appellate Term, Second Department Edited by Lawrence N. Rogak
In this no-fault suit, defendant appealed from an order granting summary judgment to plaintiff. The Appellate Term affirmed.
"In opposition to plaintiff's motion for summary judgment, defendant was required, in order to raise a triable issue of fact as to medical necessity, to proffer proof in admissible form . In its opposing papers, defendant submitted an affirmed peer review report which stated that there was a lack of medical necessity for the medical equipment provided by plaintiff."
"In its reply papers, plaintiff asserted that the peer review report upon which defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a facsimile of the peer reviewer's signature."
"Although defendant argues that plaintiff's contention was improperly raised for the first time in plaintiff's reply papers, the reply affirmation from plaintiff's counsel was responsive to defendant's papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff's motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor's signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue. Accordingly, the judgment is affirmed."
"We note that the affirmation by Dr. Curley, annexed to defendant's reply brief on appeal, may not be considered by the court as it is dehors the record."
Comment: Don't you just love the word "dehors"? I wouldn't use it around non-legal folks, however. It could lead to a misunderstanding.