2106 again...

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the "AB v. Liberty" line of cases and the "old" Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

And now...
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U)(App. Term 2d Dept. 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_50810.htm

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant's motion argued that: (Issue #1) a business record predicate was not set forth in Defendant's moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant's papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed the law know that the Appellate Division, Second Department, has ruled on this issue, albeit the last time in 2006 and the first time 2004.

Issue #2 was quickly disposed of since the affidavit that was presented has previously been held to adequately describe the mailing procedure.

Issue #3 is the reason this case went up the appellate ladder. Plaintiff, in her opposition papers, presented an affirmation of Dr. Zakharov. Upon a search of the Office of Professional Responsibility (OPR) website, it was learned that Dr. Zakharov was the President of this corporation. CPLR 2106 expressly disallows a party to "affirm" to the truth of matters set forth in the litigation, and at least three cases previously held that a member of a business organization who is a party to the litigation may not use the CPLR 2106 affirmation process.

A proper objection along with the printout of the OPR site were set forth in Defendant's reply papers. Incidentally, some have argued (and there was merit to this argument) that the OPR record needed to be certified. CPLR 4518(c). I think we can all agree that after Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. 2009 NY Slip Op 00351 (2d Dept 2009), this objection is palpably without merit.

Plaintiff's papers were properly excluded. Having failed to raise a triable issue of fact, summary judgment was awarded to Defendant.