March 19, 2014

Webster Ave Med. Pavilion, PC v Allstate Ins. Co. (2014 NY Slip Op 50393(U))

Headnote

The main issue in this case was whether the defendant, Allstate Insurance Company, had failed to establish the lack of medical necessity of the diagnostic testing giving rise to the plaintiff's claim for assigned first-party no-fault benefits. The trial court found in favor of the plaintiff, Webster Ave Medical Pavilion, PC, awarding it damages in the principal sum of $3,045.08. The Appellate Term, First Department affirmed the trial court's judgment, agreeing that the defendant had not met its evidentiary burden and failed to establish the lack of medical necessity. The court also noted that the defendant's medical expert's sparse and confusing opinion testimony, which reflected a lack of knowledge as to the assignor's medical condition at the time of testing, was insufficient. As a result, the judgment in favor of the plaintiff was upheld.

Reported in New York Official Reports at Webster Ave Med. Pavilion, PC v Allstate Ins. Co. (2014 NY Slip Op 50393(U))

Webster Ave Med. Pavilion, PC v Allstate Ins. Co. (2014 NY Slip Op 50393(U)) [*1]

Webster Ave Med. Pavilion, PC v Allstate Ins. Co.

2014 NY Slip Op 50393(U) [42 Misc 3d 148(A)]

Decided on March 19, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
14-028.

Webster Ave Medical Pavilion, PC, a/a/o Ariel Bello, Plaintiff-Respondent, – –
against
Allstate Insurance Company, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about November 3, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $3,045.08.

Per Curiam.

Judgment (Raul Cruz, J.), entered on or about November 3, 2010, affirmed, with $25 costs.

We agree that defendant failed to meet its evidentiary burden of establishing the lack of medical necessity of the diagnostic testing giving rise to plaintiff’s claim for assigned first-party no-fault benefits. The trial court was entitled to reject the sparse and confusing opinion testimony offered by defendant’s medical expert — which reflected the expert’s confessed lack of knowledge as to the assignor’s medical condition at the time of testing — even though the expert’s testimony was unopposed (see Chabourne & Parke, LLP v HGK Assets Mgt., Inc., 295 AD2d 208, 209 [2002]). Any misstatement in the court’s written decision as to the source of the medical records reviewed by defendant’s expert does not serve to undermine the court’s otherwise proper resolution of the matter.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014