Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff's assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant's doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant's doctor's testimony. In view of the foregoing and the Civil Court's finding that defendant's doctor's testimony was "wholly credible," we disagree with the Civil Court's determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 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]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014