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

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This opinion is uncorrected and will not be published in the printed Official Reports.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


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