Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y.
2016 NY Slip Op 51815(U) [54 Misc 3d 129(A)]
Decided on December 16, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2016

2015-606 K C

Metropolitan Diagnostic Medical Care, P.C., as Assignee of Elan Wolkowitz, Respondent,


Erie Insurance Company of New York, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 5, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,839.34.

ORDERED that the judgment is affirmed, with $25 costs.

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 MRIs of plaintiff's assignor's cervical and thoracic spines. The only witness was defendant's doctor, a board-certified orthopedic surgeon with 30 years of experience, who also "write[s] papers, and give[s] lectures." He testified that he was the doctor who had prepared the peer review reports concerning the two MRIs at issue in this action and found that the MRIs were not medically necessary. The peer review reports were admitted into evidence, over plaintiff's objection, but the underlying medical records were not admitted into evidence. At the close of the doctor's testimony, each side moved for a directed verdict. The Civil Court, finding that defendant's medical witness was not qualified as an expert and, in any event, that the witness's testimony was not credible, awarded judgment in favor of plaintiff in the principal sum of $1,839.34.

The fact that defendant's witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court's determination, to the witness's competency to testify as an expert (see Gordon v Tishman Constr. Corp., 264 AD2d 499, 502 [1999]; Smith v City of New York, 238 AD2d 500, 500-501 [1997]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55, 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, we find no basis to disturb the Civil Court's finding that the witness's testimony was not credible.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 16, 2016