Mollo Chiropractic, PLLC v American Commerce Ins. Co.
2020 NY Slip Op 51548(U) [70 Misc 3d 131(A)]
Decided on December 23, 2020
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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2020


Mollo Chiropractic, PLLC, as Assignee of Jason Solas, Appellant,


American Commerce Insurance Company, Respondent.

Lower Court # 131906/09 The Rybak Firm, PLLC, (Damin J. Toell and Karina Barska of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP, (Nathan M. Shapiro and Shaun Malone of counsel), for respondent.

Appeals from two judgments of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered December 5, 2017 and February 8, 2018, respectively. Each judgment, after a consolidated nonjury trial of the two above-captioned actions, dismissed the respective complaint.

ORDERED that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the judgments are affirmed, with $25 costs on each appeal.

In these two actions by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from two judgments, each of which, after a consolidated nonjury trial, dismissed the respective complaint on the ground of lack of medical necessity.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Here, as the court implicitly determined, defendant's expert witness adequately provided a factual basis and medical rationale for his conclusion that there was no medical necessity for the services at issue in each case, manipulation under anesthesia (MUA). Contrary to plaintiff's contentions, the court did not rely on any evidence provided by defendant's expert that [*2]impermissibly went beyond the scope of the peer review report (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Defendant's experts's theory in both his peer review report and at trial was, essentially, that MUA is an "aggressive" and possibly dangerous treatment and should therefore be used very rarely, limited to cases where, among other things, there has first been improvement with a course of traditional chiropractic care, and that the records here were inconsistent and not clear enough to show that this was one of those cases. The court was entitled to credit that testimony. The court also implicitly found that plaintiff's witness's testimony was less credible and failed to sufficiently rebut defendant's expert's testimony.

To the extent plaintiff argues that the Civil Court erred in sustaining objections to questions regarding an MUA textbook that was not in evidence, "since [plaintiff] failed to identify any prejudice which resulted from such alleged error, we conclude that the error, if any, was harmless" (Edwards v Nemet Motors, LLC, 60 Misc 3d 28, 31 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see CPLR 2002; Parris v New York City Tr. Auth., 140 AD3d 938 [2016]). Plaintiff's remaining contentions were either not raised in the Civil Court or lack merit.

Accordingly, the judgments are affirmed.



Paul Kenny

Chief Clerk

Decision Date: December 23, 2020