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Kew Garden Imaging As Assignee of Manuel Ortiz, Respondent v. State Farm Mutual Automobile Ins. Co.

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


May 6, 2013

KEW GARDEN IMAGING AS ASSIGNEE OF MANUEL ORTIZ, RESPONDENT, --
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO., APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 18, 2010.

Kew Garden Imaging v State Farm Mut. Auto. Ins. Co.

Decided on May 6, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 $1,819.10.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a stipulation, was, for all but one claim, whether the services at issue were medically necessary. The Civil Court precluded defendant's medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.

As defendant's doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.

We note that the trial also involved one claim for $60.70, to which defendant had apparently raised a workers' compensation fee schedule defense. While it appears that defendant's counsel may have meant to concede this claim at trial, the record is not clear. Thus, we remit the entire case for a new trial.

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

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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