Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered March 16, 2017. The judgment, insofar as appealed from, after a nonjury trial, dismissed the second, third, fourth, sixth and eighth causes of action.

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 whether the services at issue were medically necessary. The trial court entered into evidence the claim forms and denial of claim forms, and the parties stipulated to the expertise of defendant’s peer review doctor as a board certified internist. The doctor testified that the services provided by plaintiff lacked medical necessity. Plaintiff rested its case without calling any witnesses. Plaintiff appeals from so much of a judgment entered March 16, 2017 as dismissed the second, third, fourth, sixth and eighth causes of action.

Since defendant sufficiently rebutted the presumption of medical necessity (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), we find no basis to disturb the Civil Court’s finding with respect thereto (see Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50937[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment, insofar as appealed from, is affirmed.