Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U))

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co.

2011 NY Slip Op 52300(U) [34 Misc 3d 129(A)]

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

Park Slope Medical and Surgical Supply, Inc. as Assignee of IRA FRANKLIN, Respondent,

against

Progressive Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 6, 2010. The judgment, after a nonjury trial, awarded plaintiff the total sum of $1,898.84.

ORDERED that the judgment is reversed, without 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 Civil Court essentially 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. Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of the subject claim was based, should have been permitted to testify as to her opinion as to the medical necessity of the supplies 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 (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; see also Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Therefore, a new trial is required.

We note that, contrary to plaintiff's argument below and on appeal, the April 10, 2008 order denying plaintiff's motion for summary judgment did not make an explicit or implicit CPLR 3212 (g) finding that there were any facts that had been established for all purposes in the action (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d & 11th Jud Dists 2007]). Therefore, upon the new trial, plaintiff will be required to introduce evidence to establish its case (id.).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial in accordance with this decision. [*2]