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Metropolitan Medical Supplies, LLC As Assignee of Tenisha Addison v. Geico Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 6, 2012

METROPOLITAN MEDICAL SUPPLIES, LLC AS ASSIGNEE OF TENISHA ADDISON, RESPONDENT, --
v.
GEICO INS. CO.,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 22, 2010.

Metropolitan Med. Supplies, LLC v GEICO Ins. Co.

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS, ALIOTTA, JJ

The judgment, after a non-jury trial, implicitly awarded plaintiff the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action, for a total award to plaintiff of the principal sum of $1,785.79.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney's fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint sought to recover the principal sum of $686.44 upon a first cause of action and the principal sum of $1,409.24 upon the second cause of action. Pursuant to a pretrial order, the trial in this action was limited to the issue of the medical necessity of the billed-for supplies. At the non-jury trial, defendant's expert witness was allowed to testify as to plaintiff's first cause of action, but was precluded from testifying as to plaintiff's second cause of action, on the ground that the witness was not the doctor who had prepared the peer review upon which defendant's denial of the claim underlying the second cause of action had been based. After trial, plaintiff was awarded the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action. Defendant appeals.

We reject defendant's challenge to the Civil Court's finding as to plaintiff's first cause of action. "A decision rendered by a court after a non-jury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence" (S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U], *1 [App Term, 2d & 11th Jud Dists 2008], quoting Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Although plaintiff did not put on any rebuttal witnesses, plaintiff did cross-examine defendant's witness, and the Civil Court "was free to assess and reject [the witness's] uncontradicted expert opinion" (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U], *2 [App Term, 2d & 11th Jud Dists 2006]).

As to plaintiff's second cause of action, we find that the Civil Court erred in precluding the testimony of defendant's expert medical witness. While that witness had not prepared the peer review report upon which defendant's denial of this claim was based, he nevertheless should have been permitted to testify as to his opinion of the lack of medical necessity for the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the peer review report (Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). As defendant's witness should not have been precluded from testifying as to the second cause of action, a new trial is required on this cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney's fees thereon, and for a new trial on the second cause of action.

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

Decision Date: August 06, 2012

20120806

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