Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co.

[*1] Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. 2015 NY Slip Op 51656(U) Decided on November 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-928 Q C

AP Orthopedic & Rehabilitation, P.C. as Assignee of EUGENE COOPER and MYONG KUNG SONG, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 18, 2012. The judgment, entered pursuant to a decision of the same court dated September 14, 2012, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $8,220.17 on plaintiff's third cause of action.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated September 14, 2012 is deemed a premature notice of appeal from so much of the judgment entered December 18, 2012 as awarded plaintiff the principal sum of $8,220.17 on plaintiff's third cause of action (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the parties' attorneys stipulated that the only issue to be tried concerned the third cause of action, for which plaintiff sought to recover the principal sum of $8,220.17. It was further stipulated that defendant's witness was an expert. The trial proceeded solely upon defendant's defense of lack of medical necessity. Following the trial, the Civil Court found in favor of plaintiff on the third cause of action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant's witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary. As we find no basis to disturb the Civil Court's findings, the judgment, insofar as appealed from, is affirmed.

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

Decision Date: November 12, 2015