|Radiology Today, P.C. v Progressive Ins. Co.|
|2011 NY Slip Op 51724(U) [32 Misc 3d 144(A)]|
|Decided on September 16, 2011|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia
G. Ash, J.), entered December 23, 2009. The judgment, after a nonjury trial, awarded plaintiff the
principal sum of $912.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
The nonjury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant's peer review report into evidence, 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.
Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of the subject claim was based, should have been permitted to testify (see Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011