S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 51537(U))

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co.

2008 NY Slip Op 51537(U) [20 Misc 3d 137(A)]

Decided on July 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

S.J. Pahng, M.D., P.C. a/a/o SSANG GUK JUNG, Appellant,

against

Progressive Northeastern Insurance Company, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 18, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $33.55.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue at trial was the medical necessity of nerve testing of the assignor's upper and lower extremities. Before trial, the parties stipulated that plaintiff proved its prima facie
case, that defendant timely and properly denied the claims and that the claims for certain diagnostic testing were in dispute and had not been paid. The trial court entered into evidence the claim forms, denial of claim forms and the transcript of the deposition testimony of defendant's peer review doctor (see CPLR 3117 [a] [4]). After trial, the court awarded judgment in the principal sum of $33.55 to plaintiff. This appeal by plaintiff ensued on the ground of inadequacy.

"A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence" (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [*2][2004]). Since the parties stipulated to plaintiff's prima facie case, the burden shifted to defendant to proffer sufficient evidence in support of a defense (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). The testimony of defendant's peer review doctor established that there was a lack of medical necessity for the medical services which are the subject of this appeal. As plaintiff did not offer any rebuttal evidence to show that the services were medically necessary (see id.), the record does not support plaintiff's contention that the judgment is inadequate. As a result, the judgment is affirmed.