Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co.

[*1] Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. 2017 NY Slip Op 51837(U) Decided on December 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1569 K C

Jamaica Medical Plaza, P.C., as Assignee of Ana Casiano, Respondent,

against

GEICO General Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Moshe D. Fuld, P.C. (David Karp, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 4, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,937.42.

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

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services at issue. The Civil Court precluded the testimony of defendant's expert witness and granted plaintiff's motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $4,937.42.

Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of the claim at issue had been based, should have been permitted to testify as to her opinion regarding the lack of medical necessity of the services at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (see Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY [*2]Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017