Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50695(U))
| Pavlova v Hartford Ins. Co. |
| 2019 NY Slip Op 50695(U) [63 Misc 3d 147(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2017-641 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 1, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Pavlova, as Assignee of George Brathwaite v Hartford Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-600 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))
| Pavlova v Hartford Ins. Co. |
| 2019 NY Slip Op 50693(U) [63 Misc 3d 147(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2017-600 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Mackey Butts & Wise, LLP (Joshua E. Mackey of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 1, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form [*2]at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Diamond Law Group, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 16, 2016. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff’s [*2]assignor had failed to appear for the scheduled IMEs.
The affirmations and affidavits defendant submitted from the medical providers who were to perform the IMEs of plaintiff’s assignor were sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Solution Bridge, Inc. v Nationwide Ins. (2019 NY Slip Op 50689(U))
| Solution Bridge, Inc. v Nationwide Ins. |
| 2019 NY Slip Op 50689(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
2017-311 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 7, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.
Plaintiff correctly argues that the affidavit it submitted in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and thus that there is a triable issue of fact as to whether the verification had been provided.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))
| Preferred Ortho Prods., Inc. v Hereford Ins. Co. |
| 2019 NY Slip Op 50688(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
2017-283 Q C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered November 9, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
IDS Property Casualty Insurance Company, Respondent.
Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 18, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $348.80, $204.41, $148.69, and $91.42 are denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.
Plaintiff correctly argues that the initial EUO scheduling letter sent to plaintiff had been sent more than 30 days after defendant had received the claims seeking $348.80, $204.41, $148.69, and $91.42. As a result, the request was a nullity as to those claims (see Neptune Med. [*2]Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and defendant failed to establish its entitlement to summary judgment with respect to such claims. Thus, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $348.80, $204.41, $148.69, and $91.42 should have been denied.
To the extent that plaintiff cross-moved for summary judgment on the claims seeking $348.80, $204.41, $148.69, and $91.42, plaintiff is not entitled to summary judgment upon these claims as plaintiff failed to establish its prima facie case since it did not establish that defendant had failed to deny such claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of the claims which were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Contrary to plaintiff’s arguments, defendant established that it had timely mailed the initial and follow-up EUO scheduling letters and denial of claim forms for the remaining claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]), and that plaintiff failed to appear at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, the Civil Court properly granted the branches of defendant’s motion seeking summary judgment dismissing the remaining claims.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $348.80, $204.41, $148.69, and $91.42 are denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))
| 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
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
Reported in New York Official Reports at Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2019 NY Slip Op 50685(U))
| Prompt Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. |
| 2019 NY Slip Op 50685(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
2017-108 K C
against
Nationwide Affinity Ins. Co. of America, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Kevin J. Philbin (Ivy Cherian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 8, 2016. The order granted defendant’s motion to vacate a judgment of that court entered June 29, 2019 upon defendant’s failure to appear or answer the complaint.
ORDERED that the order is affirmed, with $25 costs.
Plaintiff commenced this action on April 9, 2016 to recover assigned first-party no-fault benefits. Defendant was served with the complaint on April 19, 2016, and plaintiff filed proof of service of the complaint on April 25, 2016. On May 30, 2016, plaintiff applied to the clerk for a default judgment, pursuant to CPLR 3215 (a). On May 31, 2016, defendant served its answer. A default judgment was entered on June 29, 2016. Plaintiff appeals from an order entered September 8, 2016 granting defendant’s motion to vacate the default judgment and deeming defendant’s answer to be timely.
Upon a review of the record, we find no merit to plaintiff’s sole contention on appeal that defendant failed to establish a reasonable excuse for its default (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745 [2018]; Estrada v Selman, 130 AD3d 562 [*2][2015]). Consequently, we find no reason to disturb the order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
Reported in New York Official Reports at Complete Chiropractic, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50684(U))
| Complete Chiropractic, P.C. v GEICO Gen. Ins. Co. |
| 2019 NY Slip Op 50684(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
2017-92 Q C
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 $450.
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 $450.
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
Reported in New York Official Reports at North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
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 $243.09.
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 $243.09.
Defendant’s expert witness should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. 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]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report (see Staten Is. Advanced Surgical Supply v GEICO Ins. Co., 58 Misc 3d 143[A], 2017 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). We note that an insurer cannot use a peer review report to prove its defense of lack of medical necessity or to impermissibly bolster its expert’s testimony (see e.g. Promed Orthocare Supply, Inc., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Accordingly, 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