October 18, 2019

AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51683(U))

Headnote

The erroneous exclusion of a police accident report required a new trial on whether the assignor was injured in the underlying accident. That question was the sole issue at the nonjury trial in the provider's action for assigned no-fault benefits. The Civil Court, Kings County, awarded judgment to the provider, but the excluded report was material to the issue being tried. The Appellate Term, Second Department, reversed the judgment and remitted the matter for a new trial. It separately dismissed the appeal from the trial court's decision because no appeal lies from a decision under CCA 1702.

Reported in New York Official Reports at AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51683(U))

[*1]
AR Med. Rehabilitation, P.C. v MVAIC
2019 NY Slip Op 51683(U) [65 Misc 3d 138(A)]
Decided on October 18, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-104 K C

AR Medical Rehabilitation, P.C., as Assignee of Mitchell Lewen, Respondent,

against

MVAIC, Appellant.


Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated November 19, 2014, and from a judgment of that court entered October 8, 2015. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $8,557.97.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the sole issue was whether plaintiff’s assignor was injured during the underlying motor vehicle accident. Following the trial, the Civil Court awarded judgment to plaintiff. Upon a review of the record, we find that the court erroneously excluded the police report regarding the accident at issue from evidence. As the report was material to the sole issue before the court, we find that a new trial is required.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019

Cited by

Similar decisions