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Radiology Today, P.C. As Assignee of Lasonya White v. Progressive Insurance Company

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


September 16, 2011

RADIOLOGY TODAY, P.C. AS ASSIGNEE OF LASONYA WHITE,
RESPONDENT,
v.
PROGRESSIVE INSURANCE COMPANY,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 23, 2009.

Radiology Today, P.C. v Progressive Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2011

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

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

The non-jury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant's peer review report into evidence, precluded the testimony of defendant's expert witness and granted plaintiff's motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered.

Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Decision Date: September 16, 2011

20110916

© 1992-2011 VersusLaw Inc.



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