December 24, 2013

Drew De Marco, P.C. v Allstate Ins. Co. (2013 NY Slip Op 52212(U))

Headnote

The relevant facts in the case of Drew De Marco, P.C. v Allstate Ins. Co. include the plaintiff suing to recover first-party no-fault benefits for chiropractic services rendered to the insured assignor in the form of manipulation under anesthesia (MUA). The main issue decided was whether the trial court properly precluded the defendant's chiropractor, Dr. Kevin Portnoy, from testifying as an expert on MUA procedures, which led to the court directing a verdict in favor of the plaintiff. The holding of the case was that the trial court's decision was reversed and a new trial was ordered. The court found that the defendant's chiropractor, Dr. Kevin Portnoy, was qualified as a chiropractic expert based on the parties' open court stipulation, and therefore did not need to be certified as an MUA specialist to offer an opinion on the medical necessity of the MUA procedures in question. Therefore, his lack of certification in this area only affected the weight to be accorded to his testimony, not its admissibility.

Reported in New York Official Reports at Drew De Marco, P.C. v Allstate Ins. Co. (2013 NY Slip Op 52212(U))

Drew De Marco, P.C. v Allstate Ins. Co. (2013 NY Slip Op 52212(U)) [*1]

Drew De Marco, P.C. v Allstate Ins. Co.

2013 NY Slip Op 52212(U) [42 Misc 3d 130(A)]

Decided on December 24, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres JJ
570853/13.

Drew De Marco, P.C., a/a/o Loretta Golson, Plaintiff-Respondent,
against
Allstate Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 15, 2011, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Order (Fernando Tapia, J.), entered March 15, 2011, reversed, with $10 costs, and matter remanded for a new trial.

Plaintiff sues to recover first-party no-fault benefits for chiropractic services rendered to the insured assignor in the form of manipulation under anesthesia (MUA). At the commencement of trial, the parties stipulated in open court to “the credentials [and] the expertise” of defendant’s chiropractor, Dr. Kevin Portnoy, D.C. However, during Dr. Portnoy’s redirect testimony, the trial court precluded the witness from testifying as an expert on MUA procedures based on his acknowledgment that he was not certified to perform MUA. The Court thereupon directed a verdict in favor of plaintiff.

On defendant’s appeal, we reverse and order a new trial. Based upon the parties’ open court stipulation, Dr. Portnoy was qualified as a chiropractic expert. Thus, he need not have been certified as an MUA specialist to offer an opinion as to the medical necessity of the MUA procedures here at issue (see Matter of Solano v City of Mount Vernon, 108 AD3d 676, 677 [2013]). His lack of certification in this area goes to the weight to be accorded his testimony, not its admissibility (see Borawski v Huang, 34 AD3d 409, 410 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2013