WHAT HAPPENS WHEN DOCUMENTS IN SUPPORT OF SUMMARY JUDGMENT ARE NOT PROPERLY AUTHENTICATED? YOU GET REVERSED BY THE APPELLATE DIVISION!

April 9, 2015 by Craig A. Squitieri ·

In the recent unpublished Appellate Division opinion of Anesthesiology Associates of Manhattan, P.C., vs. Ronald Grinblat, Mr. Grinblat was sued by his doctors for non-payment of services provided. The plaintiff further alleged that Mr. Grinblat's health insurance provider had paid for the services directly to Mr. Grinblat, who in turn did not pay the plaintiff. Unfortunately, you do see this now and then, especially when the health insurance provider is not in the health insurance plan.

The Plaintiff, prior to trial, filed a motion for summary judgment, which means we do not need a trial, the court can make a decision right now without a trial. However, in support of the motion, plaintiff only provided a certification of counsel, to which was attached the bills for services rendered to Mr. Grinblat, a United Healthcare's explanation of benefits and its three cancelled checks to Ronald Grinblat totaling $7,490.00. The plaintiff's name was not listed on either the checks or the explanation of benefits, and the doctors' names were not included in the bill for service.

Despite the fact that counsel's certification was not made on personal knowledge as required by Rule 1:6-6, and none of the documents supporting the charges and payments were authenticated, the lower court granted plaintiff's motion for summary judgment.

On appeal, the Appellate Division reversed and held that the award of summary judgment was clearly inappropriate because it was entered wholly on the basis of incompetent evidence. The court, when referring to plaintiff's counsel's certification stated "[a]s has been stated on times too numerous to count, motions for summary judgment must be supported by relevant and admissible evidence. The court further stated that "[a] certification will support the grant of summary judgment only if the material facts alleged therein are based, as required by Rule 1:6-6, on 'personal knowledge.'" The court made clear that [a]ffidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay."

The documents attached to the certification of counsel did not fare any better. The court held that "[d]ocuments submitted in support of a motion must likewise be authenticated by affidavit or certification based on personal knowledge." In closing the court stated that "[h]ere, not only was plaintiff's motion not supported by competent evidence, the evidence submitted failed to explain the relationship between the physicians who purportedly performed services and plaintiff. Accordingly, we reverse the entry of summary judgment."