November 23, 2018

Daily Med. Equip. Distrib. Ctr., Inc. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51691(U))

Headnote

The court considered the case of Daily Medical Equipment Distribution Center, Inc., as the assignee of Kristina Barbee, seeking to recover first-party no-fault benefits from GEICO General Insurance Company. The main issue of the case was the medical necessity of the supplies in question, as the trial focused on the testimony of defendant's expert witness and whether the supplies were deemed necessary. The Civil Court precluded the testimony of the expert witness and granted the plaintiff's motion for a directed verdict, resulting in a judgment in favor of the plaintiff for $1,556.96. The Appellate Term, Second Department reversed the judgment and remitted the matter to the Civil Court for a new trial, citing a similar case as precedent. The holding of the case was that the judgment in favor of the plaintiff was reversed, and a new trial was ordered.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51691(U))

Daily Med. Equip. Distrib. Ctr., Inc. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51691(U)) [*1]

Daily Med. Equip. Distrib. Ctr., Inc. v GEICO Gen. Ins. Co.

2018 NY Slip Op 51691(U) [61 Misc 3d 146(A)]

Decided on November 23, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1059 K C

Daily Medical Equipment Distribution Center, Inc., as Assignee of Kristina Barbee, Respondent,
against
GEICO General Insurance Company, Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered February 3, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,556.96.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the supplies in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $1,556.96.

For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018