This is a case that came out, upon which I prevailed.
High Quality Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 50447(U)(App. Term 2d Dept. 2010)
“In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s cross motion which sought summary judgment dismissing the second cause of action should have been granted (id.; see also A. Khodadadi Radiology, P.C. v NY Cent. Mut Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).”
Here was the pertinent part of plaintiff’s unsatisfactory affidavit, which I am pulling from my Appellate brief:
- “1. The Affirmation of Dr. REDACTED
Respondent offered an affirmation from a physician named REDACTED. The affirmation states the following:
I have reread the medical records attached hereto that I have prepared in conjunction with the treatment rendered to Robel Thomy for his accident, suffered on November 26, 2006. I swear that my conclusions and findings, fully incorporated by reference, are true and accurate. I have also read the report from the peer review performed by REDACTED on March 30, 2007. Further, after review of the above documents, I reaffirm my opinion that the medical services that were provided on March 7 were medically necessary”
In my opinion, this affidavit was better than that found in Infinity and Coop City. It was internally consistent and really said the same thing, less the verbiage, as that found in Infinity and Coop City.
