Greater NY Med. Care, P.C. v Allstate Ins. Co.

[*1] Greater NY Med. Care, P.C. v Allstate Ins. Co. 2017 NY Slip Op 51849(U) Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 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
2014-2794 RI C

Greater NY Medical Care, P.C., as Assignee of Owoeye, Princess, Respondent,

against

Allstate Insurance Company, Appellant.

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant. Lana Sukhman, Esq., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 2, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,119.44.

ORDERED that, on the court's own motion, the notice of appeal from a decision of that court dated June 28, 2013 is deemed a premature notice of appeal from the judgment entered December 2, 2014 (see CPLR 5520 [c]); and it is further,

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

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court determined that defendant had demonstrated, prima facie, through the presentation of credible expert witness testimony, that the medical services at issue had not been medically necessary and that plaintiff had not rebutted defendant's case. Notwithstanding the foregoing, the Civil Court awarded judgment to plaintiff in the principal sum of $3,119.44. In light of the contradiction between the Civil Court's findings and its award, a new trial is warranted.

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 22, 2017