In a fascinating decision regarding an auto accident case that the defendants sought to dismiss on the grounds that the plaintiffs did not sustain a "serious injury," a Brooklyn trial court recently held inadmissible a doctor's medical report that was purportedly subscribed via electronic means, rather than the doctor's actual signature. The trial court went to great pains to explain the rationale for its decision, and expressly acknowledged that its holding was dictated by the Appellate Division, Second Department's holding in Vista Surgical Supplies, Inc. v. Travelers Ins. Co. (50 AD3d 778 [2d Dept 2008]), because the Kings County courts are bound by that appellate court's precedent - even though one of the sister appellate courts, the Appellate Division, First Department, specifically declined to follow the Vista holding.
After a lengthy review of the case and statutory law, and then rejecting the defendant's submissions, the Court stated as follows:
"This recitation of history is not intended to demonstrate that the Second Department is correct on the issue and the First Department is wrong, but, rather, to establish that the inadmissibility of "affirmations" with facsimile signatures is well-grounded in the Second Department, both before and since its ruling in Vista Surgical Supplies (50 AD3d 778), and should be known to attorneys that practice regularly in the courts within the Department."
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