May 3, 2019

Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))

Headnote

The medical provider, Main Street Medcare, P.C., brought a lawsuit against GEICO General Insurance Co. to recover assigned first-party no-fault benefits in the amount of $2,231.10. The sole issue in the nonjury trial was the medical necessity of the services provided by the medical provider. The Civil Court precluded the testimony of defendant's expert witness, who did not prepare the underlying peer review report, on the ground that such testimony would be hearsay, and granted the plaintiff's motion for a directed verdict. The Appellate Term reversed the judgment and remitted the matter to the Civil Court for a new trial, citing the reasoning in a similar case, North Am. Partners in Anesthesia, LLP, as Assignee of Jose Maravilla v GEICO Gen. Ins. Co. The holding was that the judgment in favor of the plaintiff was reversed, and the matter was remitted to the Civil Court for a new trial.

Reported in New York Official Reports at Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))

Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U)) [*1]

Main St. Medcare, P.C. v GEICO Gen. Ins. Co.

2019 NY Slip Op 50686(U) [63 Misc 3d 146(A)]

Decided on May 3, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-152 Q C

Main Street Medcare, P.C., as Assignee of Doreen Pittelli, Respondent,
against
GEICO General Insurance Co., Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. The Odierno Law Firm, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 28, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,231.10.

ORDERED that, on the court’s own motion, the notice of appeal from the oral decision made on November 17, 2015 is deemed a premature notice of appeal from the judgment entered November 28, 2016 (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.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness, who did not prepare the underlying peer review report, on the ground that such testimony would be hearsay, and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $2,231.10.

For the reasons stated in North Am. Partners in Anesthesia, LLP, as Assignee of Jose Maravilla v GEICO Gen. Ins. Co. (_ Misc 3d__, 2019 NY Slip Op __ [appeal No. 2017-91 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019