Eill v. Morck, 4490/10
Justice Jack Battaglia
Eill sought damages for injuries allegedly sustained in a car accident. Morck moved for dismissal claiming neither plaintiff sustained a "serious injury." The court previously denied the motion finding the signatures on the reports of defendants' reviewing doctor, Dr. Katz, were not made by the same person, and there was no statement which was "subscribed" by Katz. It ruled defendants failed to make a prima facie showing plaintiffs did not sustain a serious injury. Defendants later submitted Katz's affirmation stating he signed one report by hand, and the other by electronic means. The court stated the electronically signed version was not admissible as evidence in the Second Department, despite the First Department holding that a physician's affirmation containing an electronic signature complied with CPLR 2106. It noted it must follow law within the Second Department finding inadmissible affirmed medical reports with electronic facsimile signatures. Yet, as defendants submitted, albeit belatedly, Katz's affirmation noting the signatures, including the electronic facsimile, were made by him, it declined to assess Part 130 costs or sanctions against defendants and counsel.