March 17, 2014

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))

Headnote

The main issue in this case was whether the defendant's defense of lack of medical necessity was valid in a lawsuit by a medical supply provider to recover assigned first-party no-fault benefits. After a nonjury trial, the Civil Court found that the defendant's doctor's testimony had demonstrated that the supplies in question were not medically necessary and that the plaintiff had failed to rebut this showing. On appeal, the plaintiff objected to the admission of the peer review reports, but the court affirmed the judgment, stating that defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. The court held that the peer review reports were not admissible to prove lack of medical necessity, but in this case, the defendant's expert witness's testimony based on his independent review of the medical records was sufficient to demonstrate the lack of medical necessity.

Reported in New York Official Reports at All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U))

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 50462(U)) [*1]

All Borough Group Med. Supply, Inc. v Unitrin Advantage Ins. Co.

2014 NY Slip Op 50462(U) [43 Misc 3d 126(A)]

Decided on March 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2824 K C.

All Borough Group Medical Supply, Inc. as Assignee of LENNARD PRESCOD, Appellant,
against
Unitrin Advantage Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment 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, pursuant to stipulations, to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports. At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review reports into evidence lacks merit (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d, 11th & 13th Jud Dists 2013] A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014