May 3, 2019

Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))

https://www.beynensonlaw.com/case-law/main-st-medcare-p-c-v-geico-gen-ins-co-2019-ny-slip-op50686u/

Court: Appellate Term, Second Department
Decided: May 3, 2019
Citation: 2019 NY Slip Op 50686(U) · 63 Misc 3d 146(A)
Posture: Trial
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Main St. Medcare, P.C. v GEICO Gen. Ins. Co., 63 Misc 3d 146(A), 2019 NY Slip Op 50686(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay. The Appellate Term, Second Department, ordered a new trial of the assigned no-fault claims. It relied on the reasons stated in the companion appeal, North Am. Partners in Anesthesia, LLP v GEICO Gen. Ins. Co., decided the same day, No. 2017-91 Q C.

Reported in New York Official Reports at Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))

[*1]

Main St. Medcare, P.C. v GEICO Gen. Ins. Co.

2019 NY Slip Op 50686(U) [63 Misc 3d 146(A)]

Decided on May 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-152 Q C

Main Street Medcare, P.C., as Assignee of Doreen Pittelli, Respondent,
against
GEICO General Insurance Co., Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. The Odierno Law Firm, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 28, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,231.10.

ORDERED that, on the court’s own motion, the notice of appeal from the oral decision made on November 17, 2015 is deemed a premature notice of appeal from the judgment entered November 28, 2016 (see CPLR 5520 [c]); 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 of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services in question. The Civil Court precluded the testimony of defendant’s expert witness, who did not prepare the underlying peer review report, on the ground that such testimony would be hearsay, and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $2,231.10.

For the reasons stated in North Am. Partners in Anesthesia, LLP, as Assignee of Jose Maravilla v GEICO Gen. Ins. Co. (_ Misc 3d__, 2019 NY Slip Op __ [appeal No. 2017-91 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Trial ruling on burden or admissibility of the insurer's proof; matter sent back without a finding

Ordered a new trial because the trial court erred in precluding, as hearsay, the insurer's expert who had not prepared the peer review report and then directing a verdict for the provider.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 32 (this one included) are in the same category.

Similar decisions

Complete Chiropractic, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50684(U))The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay.
North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))An insurer's expert may testify to lack of medical necessity without having prepared the underlying peer review report.
Daily Med. Equip. Distrib. Ctr., Inc. v GEICO Gen. Ins. Co. (2018 NY Slip Op 51693(U))The provider's judgment after exclusion of the insurer's expert at a medical-necessity trial was reversed and a new trial ordered.
Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51036(U))The provider's motion for summary judgment on its assigned no-fault claims was granted on appeal.