Appellate Term Agrees that Affidavit Is Better than None

NO-FAULT – MEDICAL NECESSITY – CPLR 2106 – USE OF AFFIRMATION
High Quality Med., P.C. v. Mercury Ins. Co.
(App. Term, 2nd Dept., 2nd, 11th & 13th Dists., decided 11/8/2010)

New York CPLR 2106 states:

The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.  (Bold added.)

Attorneys, physicians, osteopaths and dentists may affirm via affirmations, rather than aver via affidavits, as long as they are not parties to the action in which they're affirming. 

Mercury moved for summary judgment dismissing the fifth cause of action of plaintiff provider's complaint.  In support of its motion, Mercury submitted two affidavits:  one presumably from a Mercury claim representative to establish that Mercury's denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with Mercury's standard office practices and procedures; and the other executed by the doctor who had performed the IME upon which Mercury denied payment, as well as an affirmed IME report, establishing a lack of medical necessity for the services at issue.

Plaintiff provider opposed Mercury's motion with an affirmation executed by plaintiff's principal, Dr. Nihamin.  In its reply papers, Mercury objected to that affirmation on the basis that CPLR 2106 disallows the use of an affirmation from a physician who is a party to the action.

Finding that Mercury had not established that Dr. Nihamin was plaintiff's principal and that Dr. Nihamin's affirmation raised a question of fact regarding the medical necessity of the billed services, Kings County Civil Court (Noach Dear, J.) denied Mercury's motion.  In REVERSING that order, the Appellate Term, Second Department, found that the motion court should not have considered Dr. Nihamin's affirmation:

Although the Civil Court found that defendant had failed to prove that Dr. Nihamin was plaintiff's principal, the claim form submitted to defendant by plaintiff identified Dr. Nihamin as plaintiff's principal.  As a result, the submission of Dr. Nihamin's affirmation was improper because Dr. Nihamin is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]).  Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). 

Over at his No Fault Defender blog, Jason Tenebaum reports that this was Mercury's (his) fourth kill shot with a CPLR 2106 slug.  Coverage Counsel is seeking confirmation of the report that during oral argument of Mercury's appeal, in response to a question from Presiding Justice Pesce, plaintiff provider's counsel quoted another well-known litigator from the Second Department, in saying:  "I explained it to you already, didn't I?  It's procedure.  I'm bound to f@#! up a little." 

May seem trite to some, but the outcomes of New York no-fault cases often rest on seemingly nitpicky procedural  rather than substantive grounds.  This wouldn't have anything to do with the inundation of the New York courts with hundreds and hundreds of thousands of no-fault suits would it?