Pavlova v Global Liberty Ins.

[*1] Pavlova v Global Liberty Ins. 2021 NY Slip Op 50724(U) Decided on July 23, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1634 K C

Ksenia Pavlova, D.O., as Assignee of David Wright, Respondent,

against

Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 18, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,111.94.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered April 18, 2019 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,111.94. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers' compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

When 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 [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 493 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

In the present case, the record supports the finding 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 amount plaintiff sought to recover exceeded the amount permitted by the workers' compensation fee schedule. Consequently, we find no basis to disturb the Civil Court's determination.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021