Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co.

[*1] Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co. 2010 NY Slip Op 52012(U) [29 Misc 3d 136(A)] Decided on November 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-754 K C.

Rockaway Medical and Diagnostic, P.C. as Assignee of RUDOLPH PERSAUD, Appellant,

against

Country-Wide Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered February 26, 2008. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, among other matters, that plaintiff's supporting affidavit failed to establish the admissibility of plaintiff's claim form and related documents as business records. Defendant also contended that there was a lack of medical necessity for the service provided. The Civil Court denied the motion, holding that plaintiff's affidavit was insufficient to establish that the documents annexed to plaintiff's motion constituted evidence in admissible form. This appeal by plaintiff ensued.

Upon our review of the record, we find that the affidavit of plaintiff's employee was sufficient to establish that the documents annexed to plaintiff's motion papers constituted evidence in admissible form pursuant to CPLR 4518 (a) (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, the burden shifted to defendant to establish a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Although defendant proved that it had timely denied the claim on the sole ground that the MRI was not medically necessary, the only proof submitted by defendant in opposition to plaintiff's summary judgment motion was a registered nurse's peer review report. While "expert medical testimony need not come from a licensed physician" (People v Kehn, 109 AD2d 912, 914 [1985]), a registered nurse is a mere lay informant for purposes of medical diagnosis and treatment and is incompetent to render medical opinions without an accounting of his or her "training, observations or experience sufficient to establish such competence" (SZ Med. P.C. v [*2]Country-Wide Ins. Co., 12 Misc 3d 52, 55 [App Term, 2d & 11th Jud Dists 2006]; see generally People v Munroe, 307 AD2d 588, 591 [2003]). In the case at bar, the peer review report contained no facts in relation to any of the criteria necessary to establish that the nurse was competent to assert an expert medical opinion as to the lack of medical necessity of the MRI. Thus, defendant failed to raise a triable issue of material fact, and plaintiff should have been awarded summary judgment. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010