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Eagle Surgical Supply, Inc. As Assignee of Keisha Jones v. Progressive Casualty Insurance Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 24, 2012

EAGLE SURGICAL SUPPLY, INC. AS ASSIGNEE OF KEISHA JONES, RESPONDENT, --
v.
PROGRESSIVE CASUALTY INSURANCE CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 24, 2010.

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co.

Decided on January 24, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

The affidavit executed by defendant's litigation representative was sufficient to establish that defendant's NF-10 forms, which denied plaintiff's claims on the ground of lack of medical necessity, were timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public's stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant's chiropractor had been in proper form, the affidavit of plaintiff's osteopath submitted in opposition to defendant's motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.

As defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.

Decision Date: January 24, 2012

20120124

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