Opinion
2006-2045 Q C.
Decided January 15, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered May 9, 2006, deemed from a judgment entered November 27, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 9, 2006 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $5,805.99.
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ.
Judgment reversed without costs, order entered May 9, 2006 granting plaintiff's motion for summary judgment vacated, plaintiff's motion for summary judgment granted to the extent of awarding it summary judgment upon its claim for $746.01, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon and for all further proceedings on the remaining claims.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, contending that plaintiff did not make a prima facie showing because plaintiff did not establish the existence of a valid assignment; that plaintiff's claim for $82.89 was timely denied on the ground that it was subject to the personal injury protection deductible contained within the insurance policy issued to plaintiff's assignor; and that plaintiff's remaining claims were timely denied based upon affirmed peer review reports. In reply, plaintiff asserted that defendant's peer review reports did not constitute evidence in admissible form in that they failed to comply with CPLR 2106 since the doctor's signatures were affixed by stamp or generated by computer. The court held that plaintiff made a prima facie showing and that defendant's peer review reports did not constitute evidence in admissible form because the signatures were not affixed in accordance with CPLR 2106. As a result, the lower court granted plaintiff's motion for summary judgment, and judgment was subsequently entered thereon. This appeal by defendant ensued.
Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor's signature was on file," such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment ( see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312). Since defendant raises no other issue with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff's $746.01 claim form. (We note that the supervisor of defendant's no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23." The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant's opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.
Further, with respect to plaintiff's remaining claims, the court below held that the peer review reports submitted by defendant were inadmissible inasmuch as they failed to comply with CPLR 2106. This was error. Although the signatures on the peer review reports at issue appear to have been affixed by stamp or generated by a computer, plaintiff's reply papers merely demonstrated the existence of an issue of fact as to whether the peer review reports constituted evidence in admissible form, i.e, whether the purported signatures were facsimile signatures and placed thereon by the doctor in compliance with CPLR 2106 (General Construction Law § 46; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 702 [Sup Ct, NY County 1965]). Such issue of fact may not be resolved on a motion for summary judgment ( see Seoulbank, N.Y. Agency v D J Export Import Corp., 270 AD2d 193; Dyckman v Barrett, 187 AD2d 553).
Accordingly, plaintiff's motion for summary judgment is granted to the extent of awarding it partial summary judgment on its claim for $746.01, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon and for all further proceedings on the remaining claims.
We reach no other issue.
Pesce, P.J., Golia and Rios, JJ., concur.