Opinion
No. 4490/10.
2012-10-19
Jacqueline EILL and Henry Eill, Plaintiffs, v. Jason J. MORCK and John F. Morck, Defendants.
Gene W. Wiggins, Esq. of Richard T. Lau & Associates, for defendants. Plaintiffs did not submit papers.
Gene W. Wiggins, Esq. of Richard T. Lau & Associates, for defendants. Plaintiffs did not submit papers.
JACK M. BATTAGLIA, J.
Plaintiffs Jacqueline Eill and Henry Eill seek damages for injuries allegedly sustained in a motor vehicle collision on December 13, 2008. Defendants Jason J. Morck and John F. Morck moved for an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint on the ground that neither Plaintiff sustained a “serious injury” within the meaning of Insurance Law § 5102(d) as a result of that accident.
In a Decision and Order dated September 25, 2012, this Court denied the motion, stating in part as follows:
“In support, in addition to the reports of various diagnostic studies reviewed by Plaintiffs' respective treating doctors, and reviewed by Defendants' retained radiologist, Defendants submit two reports of orthopedist Michael J. Katz, M.D., who examined each Plaintiff on March 14, 2012. It is obvious, however, that the purported signatures on the two reports were not made by the same person, and there is no statement as to which, if either, was “subscribed” by Dr. Katz ( seeCPLR 2106.) A copy of the signature page of each report is attached to this Decision and Order.
Neither report can be considered as evidence on this motion, therefore, and, as a result, Defendants fail to make a prima facie showing that either Plaintiff did not sustain a “serious injury” as a result of the December 13, 2008 accident.
Since Defendants' counsel is presumed to have reviewed each document provided to the court, particularly those specifically relied upon by counsel in an affirmation submitted with the documents, the Court must assume that counsel here was aware that one or both of the reports of Dr. Michael Katz, purportedly signed by him on the same day, does not in fact bear his signature. Under these circumstances, the Court has no alternative but to consider an award of costs, or sanctions, or both, pursuant Part 130 of the Rules of Chief Administrator, and/or a referral to the appropriate Disciplinary Committee.”
The attorney who submitted his affirmation and the two reports of Dr. Katz was given the opportunity to argue as to why costs or sanctions, or both, should not be awarded against him pursuant to Part 130; and Plaintiffs were invited to state their position, if any, on the Part 130 issues. Defendants' counsel responded; Plaintiffs did not.
Defendants' counsel submits his own affirmation ( see Affirmation in Compliance With the September 25, 2012 Decision and Order of the Honorable Jack M. Battaglia [“Counsel's Affirmation”] ) and an Affirmation of Michael J. Katz, M.D. Counsel contends that both reports submitted on the motion for summary judgment were “subscribed” by Dr. Katz, one by hand and the other by electronic means, and that both were admissible as evidence on the motion.
Dr. Katz attaches to his Affirmation copies of four reports, two with respect to his examination of plaintiff Jacqueline Eill on March 14, 2012 and two with respect his examination of plaintiff Henry Eill on that date. With respect to each Plaintiff, Dr. Katz asserts that one copy of his report is “my electronic, rubber tipped stylus signed/subscribed via tablet ... report” ( see Affirmation ¶¶ 2, 5), and one copy of his report is “my original hand signed/subscribed ... report” ( see id., ¶¶ 3, 6.) He asserts further that, “[w]hile out of [his] office, [he] personally electronically signed/subscribed the electronic versions of the affirmed reports, ... utilizing a rubber tipped stylus on a tablet,” and “[u]pon return to [his] office, [he] personally hand-signed/subscribed the original paper versions of the affirmed reports, ... utilizing a pen.” ( See id., 9, 10.)
As noted in the Decision and Order, the “signatures” on, what we now know to be, the electronic versions of each report, bear virtually no visible relationship to, what we now know to be, the hand-signed versions. It now appears that, as to plaintiff Jacqueline Eill, the electronic version was submitted in support of Defendants' summary judgment motion, and that, with respect to plaintiff Henry Eill, the hand-signed version was submitted. The hand-signed report is admissible as evidence pursuant to CPLR 2106, but, contrary to Defendants' counsel's assertion, in the Second Department, the electronically-signed version is not.
Defendants' counsel relies upon the First Department's recent decision in Martin v. Portexit Corp. (98 AD3d 63 [1st Dept 2012] ), in which the court held that “a physician's affirmation containing an electronic signature complies with CPLR 2106” ( see id. at 65.) The court relied on its prior decision in Naldi v. Grunberg (80 AD3d 1 [1st Dept 2011] ), which in turn relied on the federal Electronic Signatures in Global and National Commerce Act (15 USC § 7001 et. seq.), and “held that the terms writing' and subscribed' in General Obligations Law § 5–703 should be construed to include, respectively, electronic communications and signatures.” ( See Martin v. Portexit Corp., 98 AD3d at 66.) The First Department saw “no sound reason to treat the term subscribed' as used in CPLR 2106 any differently than it is used in the statute of frauds;” and found the Second Department's decision in Vista Surgical Supplies, Inc. v. Travelers Ins. Co. (50 AD3d 778 [2d Dept 2008] ) to be “unpersuasive, and ... decline[d] to follow it.” ( See id.)
In Vista Surgical Supplies (50 AD3d 778), the court found medical reports to be “inadmissible since they contained computerized, affixed, or stamped facsimiles of the physician's signature” ( see id. at 778.) “These reports failed to comply with CPLR 2106, since they were not subscribed and affirmed, but merely contained facsimiles of the physician's signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized.” ( See id. at 778.) As the First Department obviously recognized in Martin v. Portexit Corp. (98 AD3d 63), at least as to electronic signatures on affirmations purportedly made pursuant to CPLR 2106, its ruling conflicts with that of the Second Department in Vista Surgical Supplies. This Court must follow the law as stated by the Second Department. ( See Stewart v. Volkswagen of America, Inc ., 181 A.D.2d 4, 7 [2d Dept 2002], rev'd on other grounds81 N.Y.2d 203 [2003];see also Weiner v. City of New York, 84 AD3d 140, 142 [2d Dept 2011].)
The Court notes that both textually and in its rationale, the First Department's ruling in Martin v. Portexit Corp. (98 AD3d 63) is limited to electronic signatures, and could not apply to other types of facsimile signature, such as rubber-stamped or machine-produced signatures. Presumably, even in the First Department, those types of facsimile signatures remain suspect as methods of “subscription” for purposes of CPLR 2106. One might wonder whether such a fractured regime makes sense for documents that are intended to provide reliable evidence on a motion to resolve a case without trial.
Prior to the Second Department's decision in Vista Surgical Supplies (50 AD3d 778), no appellate court considered the effectiveness of a facsimile signature of any sort on an affirmation, verified pleading, or similar legal document. In Diaz v. Great Am. Ins. Co. (109 A.D.2d 775 [2d Dept 1985] ), the court stated that, if a postal employee's signature was required on certificates of mailing, “the rubber-stamped postmark indorsement was acceptable” ( see id. at 776.) The court cited General Construction Law § 46, which defines “signature” as “any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.”
In Iselin & Co. v. Fireman's Fund Ins. Co., (117 A.D.2d 86 [1st Dept 1986], mod. on other grounds69 N.Y.2d 908 [1987] ), where “stamped printed signatures” were affixed to bills of lading and delivery documents without the knowledge or consent of the signatory, the “instruments were forged as to signature” within the meaning of that phrase in a bond ( see117 A.D.2d at 89–90;see also Interbank of New York v. Fleet Bank, 189 Misc.2d 20, 23–24 [Civ Ct, N.Y. County 2001] [“the unauthorized use of a stamped printed signature constitutes a forgery”].)
In Dowling v. Mosey (32 AD3d 1190 [4th Dept 2006] ), where the plaintiff submitted in opposition to a “serious injury” motion, a “report of her treating orthopedist that ... contained only a stamped facsimile signature, as well as the notation that it had been dictated ... but not read',” the report was “not in admissible form” ( see id. at 1191.) In Sandymark Realty Corp v. Creswell (67 Misc.3d 630 [Civ Ct, N.Y. County 1971] ), the court held that an attorney's affirmation pursuant to CPLR 2106 could not be made with a signature “affixed by a rubber stamp” that “may be affixed by any clerk or interloper, with or without authority” ( see id. at 631.) These opinions were relied upon by the Second Department in Vista Surgical Supplier v. Travelers Ins. Co. (50 AD3d at 778.)
Subsequent to Vista Surgical Supplies (50 AD3d 778), Appellate Term, Second Department, has ruled inadmissible “affirmed” medical reports with stamped or electronic facsimile signatures where the record did not demonstrate that the signature was placed on the report by the doctor or at the doctor's direction. ( See Rogy Med., P.C. v. Mercury Cas. Co., 23 Misc.3d 132[A], 2009 N.Y. Slip Op 50732[U] [App Term, 2d Dept 2009] [“electronically signed”]; Mani Med., P.C. v. Eveready Ins. Co., 25 Misc.3d 132[A], 2008 N.Y. Slip Op 52697 [U] [App Term, 2d Dept 2008] [“stamped signatures”]; Orthotic Surgical & Med. Supply, Inc. v. GEICO Ins. Co., 20 Misc.3d 137[A], 2008 N.Y. Slip Op 51540[U] [App Term, 2d Dept 2008] [“electronic stamped facsimile”]; Radiology Today, P.C. v. GEICO Ins. Co., 20 Misc.3d 70 [App Term, 2d Dept 2008] [“electronic stamped facsimile”].) All of these cases involve claims for first-party no-fault benefits, and attorneys for at least insurance carriers eventually caught on. ( See, for example, Alfa Med. Supplies v. GEICO Gen. Ins. Co., 36 Misc.3d 156[A], 2012 N.Y. Slip Op 51765[U] [App Term, 2d Dept 2012]; Quality Health Prods. v.. GEICO Gen. Ins. Co., 34 Misc.3d 129[A], 2011 N.Y. Slip Op 52299[U] [App Term, 2d Dept 2011].)
At least one trial court in the Second Department, in addition to this Court, has applied Vista Surgical Supplies (50 AD3d 778) in ruling inadmissible “affirmed” medical reports submitted on “serious injury” motions. ( See Sweeney v. Springs, ––– Misc.3d ––––[A], 2012 N.Y. Slip Op 30415 [U], * * 5 [Sup Ct, Nassau County 2012] [“stamped signatures”]; see also Retained Realty v. Ramdass, 30 Misc.3d 1217[A], 2011 N.Y. Slip Op 50107 [U] [Dist Ct, Nassau County 2011] [“facsimile of the attorney's signature”].)
This recitation of history is not intended to demonstrate that the Second Department is correct on the issue and the First Department is wrong, but, rather, to establish that the inadmissibility of “affirmations” with facsimile signatures is well-grounded in the Second Department, both before and since its ruling in Vista Surgical Supplies (50 AD3d 778), and should be known to attorneys that practice regularly in the courts within the Department. Defendants' counsel's firm is located within the Second Department, and he and his firm have made numerous “serious injury” motions to this Court.
Defendants' counsel notes that Plaintiffs in their opposition to the summary judgment motion raised no issue with respect to the signatures of Dr. Katz; and he asserts that, if they had, an affirmation of Dr. Katz similar to that submitted now would have been submitted in reply. ( See Counsel's Affirmation, ¶ ¶ 8, 12:) But counsel must know that where, as here, the court determines that a movant does not make a prima facie showing with evidence in admissible form, the court does not even consider the opposition papers ( see Winegrad v. New York University Med. Ctr., 64 N.Y.2d 851, 852 [1985];Levine v. Amverserve Assn., Inc., 93 AD3d 728, 729 [2d Dept 2012].)
More appropriately, counsel states, “in retrospect I sincerely regret not addressing in the affirmation in support of the motion for summary judgment the difference in the appearance of the signatures of Dr. Katz in his March 14, 2012 IME reports with respect to the plaintiffs” ( see Counsel's Affirmation, ¶ 12.) Presumably, in the future counsel would submit a physician's affirmation similar to the affirmation of Dr. Katz here, asserting that the facsimile signature was affixed to the report by the physician, or, if not, then by a person directed to do so by the physician, after the physician reviewed the printed report.
Considering all of the circumstances, the Court will not assess Part 130 costs or sanctions, particularly since Plaintiffs have not responded to the Court's invitation to comment.