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Psw Chiropractic Care, P.C. As Assignee of Ah Kow Lock v. Maryland Casualty Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


September 16, 2011

PSW CHIROPRACTIC CARE, P.C. AS ASSIGNEE OF AH KOW LOCK,
RESPONDENT,
v.
MARYLAND CASUALTY COMPANY,
APPELLANT.

PSW Chiropractic Care, P.C. v Maryland Cas. Co.

2011 NY Slip Op 51719(U)

Decided on September 16, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ

Appeal from a decision of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated April 7, 2009, deemed from a judgment of the same court entered June 17, 2009 (see CPLR 5520 [c]). The judgment, after a non-jury trial, awarded plaintiff the principal sum of $4,246.20.

ORDERED that the judgment is affirmed, without costs.

At the non-jury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of chiropractic treatment rendered to plaintiff's assignor. Defendant's expert medical witness, who had performed two independent medical examinations of plaintiff's assignor on defendant's behalf, testified that the chiropractic treatment at issue was not medically necessary. In a decision after trial, the Civil Court found in favor of plaintiff in the principal sum of $4,246.20. Defendant appeals from the decision. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5520 [c]).

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant's witness and the proof adduced at trial, that defendant failed to satisfy its burden of proving that the disputed chiropractic services were not medically necessary. As we find no basis to disturb the Civil Court's findings, the judgment is affirmed.

Steinhardt, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment and direct the entry of judgment in favor of defendant dismissing the complaint, in the following memorandum:

In my opinion, the Civil Court's finding that defendant failed to demonstrate that the disputed services were not medically necessary was erroneous. The mandatory personal injury protection endorsement, as set forth in the no-fault regulations, requires insurers to reimburse an eligible injured person, or his or her assignee, for necessary expenses for medical services rendered "on account of personal injures caused by an accident arising out of the use or operation of a motor vehicle" (Insurance Department Regulations [11 NYCRR] § 65-1.1). In a trial of the present case, plaintiff's prima facie case consisted entirely of stipulated facts. No witness was called to the stand. The disputed medical services for which plaintiff now seeks recovery at this trial are for treatments that were provided after June 18, 2003.

Defendant, upon presentation of its case, produced the testimony of its doctor, who had performed two independent medical examinations of plaintiff's assignor. The doctor testified that the assignor's physical condition had returned to its pre-accident status. The doctor further testified that, as of the date of his second examination, June 18, 2003, there was no need for any further chiropractic treatment.

Inasmuch as there is no testimony contradicting defendant's doctor's testimony elicited by plaintiff at trial, credibility is not at issue. Consequently, the trial court's conclusion cannot be reached under any fair interpretation of the evidence before it. I question the majority's reliance on giving deference to the determination of the trier of fact as to a witness's credibility, when plaintiff's case was entered without the benefit of actual testimony of any witnesses. As such, I give credit to defendant's doctor's testimony and find that the condition being treated did not arise out of an insured incident and was not exacerbated by an insured incident.

Consequently, defendant should not be held liable for plaintiff's chiropractic treatment of the assignor herein (see Central General Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, I would reverse the judgment appealed from and direct that judgment be entered in favor of defendant dismissing the complaint.

Decision Date: September 16, 2011

20110916

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