Speciality Surgical Servs. v Travelers Ins. Co.
2010 NY Slip Op 50715(U) [27 Misc 3d 134(A)]
Decided on April 16, 2010
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2010


2009-786 S C.

Speciality Surgical Services as assignee of CLARA OCASIO, Respondent,


Travelers Insurance Company, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 16, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $11,220.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered in favor of defendant dismissing the complaint.

Plaintiff Specialty Surgical Services commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $11,220. The instant appeal by defendant ensued.

Defendant's contention, that plaintiff lacks standing since the assignment executed by plaintiff's assignor was in favor of North Jersey Center for Surgery rather than plaintiff, lacks merit. A copy of the assignment accompanied plaintiff's claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. Consequently, defendant is precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]).

At trial, defendant's doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor's affirmed peer review report, which was to the same effect. Both the doctor's testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court's finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, Inc., 45 NY2d 493 [1978]; S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A]; 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]; see also Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

LaCava and Iannacci, JJ., concur.

Molia, J.P., taking no part.
Decision Date: April 16, 2010