Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U))

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 16, 2014. The judgment, entered pursuant to a decision of the same court dated August 19, 2013, after a nonjury trial, awarded plaintiff the principal sum of $8,939.66.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (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 the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court stated that it found that plaintiff had established its prima facie case and that defendant had timely denied the claim. Furthermore, the court stated: “That shifts the burden to the Defendant to demonstrate the lack of medical necessity for the services in question.” In its decision after trial, the court stated that the necessity of the assignor’s right-shoulder surgery was not in question, and that the burden was on defendant to demonstrate that the injuries requiring the surgery were not related to the subject accident. The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66. Defendant appeals from the decision. A judgment was subsequently entered on April 16, 2014. On the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]).

It is well settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary” (Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 n [App Term, 2d, 11th & 13th Jud Dists 2012]). Indeed, we view this as being no different from when an insurer, who has preserved such a defense by a timely denial, presents sufficient proof at trial that the billed-for services were not actually rendered or that the durable medical equipment was not provided, thereby shifting the burden back to the plaintiff provider to ultimately establish that it is seeking to recover for “necessary expenses” which were actually incurred (see 11 NYCRR 65-1.1 [c]). Thus, we hold that the Civil Court erred in ruling that defendant bore the ultimate burden of proof. As a result, since the decision in favor of plaintiff may have been the product of the court’s incorrect application of the burden of proof, a new trial is required.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Weston, J.P., Aliotta and Elliot, JJ., concur.