Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co.

[*1] Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. 2007 NY Slip Op 52454(U) [18 Misc 3d 128(A)] Decided on December 27, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1731 Q C.

Dilon Medical Supply Corp. a/a/o Mania Adiniaeva, Respondent,

against

New York Central Mutual Insurance Co., Appellant.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), dated May 16, 2006, deemed an appeal from the judgment entered September 20, 2006 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,650.

Judgment reversed without costs and matter remanded to the court below for a new trial.

At the commencement of the trial in this action to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff's prima facie case. They also stipulated that defendant timely mailed the two denial of claim forms at issue which stated that plaintiff's claims were denied, based upon peer reviews, on the ground of lack of medical necessity. After defendant announced that the doctors who prepared the peer review reports were unavailable, plaintiff moved to preclude testimony by the medical expert proffered by defendant on the grounds that his opinion would be hearsay and that plaintiff would be prejudiced by its inability to cross-examine the doctors who prepared the peer review reports upon which plaintiff's claims were denied. The court granted plaintiff's motion to preclude testimony by defendant's medical expert. After defendant rested without calling any other witnesses, the court found that defendant failed to sustain its burden of demonstrating a lack of medical necessity and awarded plaintiff the principal sum of $1,650. Subsequently, a judgment awarding said sum to plaintiff was entered and this appeal by defendant ensued. [*2]

Defendant, having preserved the defense of lack of medical necessity by timely denying the claims based upon peer reviews (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]), the issue before the court was whether the rationale for the conclusion in the peer review reports, upon which defendant's denial of claim forms was based, was correct. Since defendant sought to call a medical expert witness who was available for cross-examination, and his testimony as to the lack of medical necessity of plaintiff's services would be limited to the basis for the denials as set forth in the original peer review reports, the expert witness should have been permitted to testify (see Spruce Med. & Diagnostic, P.C. v Lumbermen's Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept]).

In light of the foregoing, the judgment is reversed and a new trial ordered.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 27, 2007