January 28, 2014

Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))

Headnote

The court considered a case in which Alev Medical Supply, Inc., as the assignee of Kecia Daniely, appealed the dismissal of their complaint seeking first-party no-fault benefits from Government Employees Insurance Company. The trial was limited to the issue of the defendant's defense of lack of medical necessity, and ultimately, the court found in favor of the defendant, dismissing most of the plaintiff's claims. The only remaining claim was for the recovery of $330 for a massager and a Thermophore. On appeal, plaintiff raised evidentiary objections, specifically challenging the admissibility of defendant's doctor's testimony as hearsay. However, the court affirmed the judgment, ruling that the Civil Court properly overruled plaintiff's hearsay objection and that the plaintiff's remaining contentions lacked merit. Therefore, the judgment was affirmed in favor of the defendant.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U))

Alev Med. Supply, Inc. v Government Employees Ins. Co. (2014 NY Slip Op 50130(U)) [*1]

Alev Med. Supply, Inc. v Government Employees Ins. Co.

2014 NY Slip Op 50130(U) [42 Misc 3d 137(A)]

Decided on January 28, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-1024 Q C.

Alev Medical Supply, Inc. as Assignee of KECIA DANIELY, Appellant,
against
Government Employees Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 7, 2011. The judgment, entered pursuant to a decision of the same court dated October 14, 2010, insofar as appealed from, after a nonjury trial, dismissed the complaint except for so much thereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 14, 2010 is deemed a premature notice of appeal from the judgment entered February 7, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of defendant on most of plaintiff’s claims, and a judgment was entered dismissing the complaint except for so muchthereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff raises only evidentiary objections.

Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013] see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014