Trimed Med. Supply, Inc. v GEICO Ins. Co.

[*1] Trimed Med. Supply, Inc. v GEICO Ins. Co. 2017 NY Slip Op 51957(U) Decided on December 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 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
2015-867 Q C

Trimed Medical Supply, Inc., as Assignee of Jessica Joseph, Respondent,

against

GEICO Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated June 5, 2013, deemed from a judgment of that court entered June 25, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $522.80.

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

In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held, limited to defendant's defense of lack of medical necessity. At the trial, the Civil Court precluded the testimony of defendant's expert witness and granted plaintiff's motion for a directed verdict. Defendant's notice of appeal from the decision dated June 5, 2013 is deemed a notice of appeal from the judgment entered June 25, 2013 (see CPLR 5512 [a]).

Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of plaintiff's claim form was based, should have been permitted to testify as to her opinion as to the lack of medical necessity of the supplies at issue, 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 [*2]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 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 29, 2017