Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jules L. Spodek, J.H.O.), entered January 14, 2010.
Infinity Health Prods., Ltd. v Unitrin Advantage 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This opinion is uncorrected and will not be published in the printed Official Reports.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 and SOLOMON, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,592.06.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.
At a non-jury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial was the medical necessity of the services provided, and agreed that defendant had the burden of going forward as a result of the stipulation. Defense counsel sought to offer into evidence the deposition transcript of its medical doctor, pursuant to CPLR 3117 (a) (4). The Civil Court refused to permit defendant to do so, and directed that judgment be entered in favor of plaintiff. A judgment was subsequently entered, from which defendant appeals. CPLR 3117 (a) (4) provides that "the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse." There is nothing in the trial record to indicate that plaintiff moved for a protective order pursuant to CPLR 3103.
While a trial court's exercise of discretion under CPLR 3117 is reviewable only for "clear abuse" (see Feldsberg v Nitschke, 49 NY2d 636, 643 ), "in exercising its discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present his case" (id. at 644). In our view, under the circumstances presented, the Civil Court abused its discretion in sua sponte refusing to permit defendant to offer into evidence the deposition testimony of its doctor (see Goldblatt v Avis Rent A Car Sys., 223 AD2d 670 ; Long Is. Anesthesiology Serv. v Solis 114 Misc 2d 561 [Civ Ct, Kings County 1982]). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 06, 2012
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