| Bronx Expert Radiology, P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 52116(U) [13 Misc 3d 136(A)] |
| Decided on November 9, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant, as limited by the briefs, appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), dated November 4, 2005, which, after a nonjury trial, directed entry of judgment in favor of plaintiff in the principal sum of $450.
PER CURIAM:
Appeal from order (Fernando Tapia, J.), dated November 4, 2005, is deemed to be an appeal from a judgment (same court and Judge), entered March 31, 2006, and so considered, judgment affirmed, with $25 costs.
Although the trial court made no findings of fact as required by CPLR 4213(b), upon an independent review of the record, we find that the trial evidence, fairly considered, supports the judgment in favor of plaintiff.
Defendant's proof was insufficient to sustain its evidentiary burden with respect to its defense of lack of medical necessity (see Zlatnick, M.D., P.C. v Travelers Indem. Co., 12 Misc 3d 128[A], 2006 NY Slip Op 50963[U]
[2006]), and in any event, the testimony of plaintiff's expert was sufficient to support plaintiff's burden of persuasion on the issue of medical necessity. The record does not support defendant's claim that the expert's testimony was incredible as a matter of law.
This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: November 9, 2006