A & A Dental, P.C. v State Farm Ins. Co. (2008 NY Slip Op 50709(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered September 20, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,250.45.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the matter proceeded to trial solely with respect to plaintiff’s claims with regard to assignor Ganiyu Salawu. At trial, the parties stipulated that plaintiff proved its prima facie case, that defendant timely and properly denied plaintiff’s claims and that no payments were made on the claims. The parties also stipulated that the sole issue at trial was whether
the assignor’s alleged injuries were causally related to the motor vehicle accident. Defendant called the assignor and a biomechanics expert as witnesses. Plaintiff did not call any witnesses. The court awarded judgment to plaintiff, and this appeal by defendant ensued.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Having stipulated to plaintiff’s prima facie case, defendant had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18 [1999]). Defendant failed to meet this burden.

A fair reading of the assignor’s testimony supports a conclusion that prior to the accident, the assignor was wearing a seat belt which was not working properly. Defendant’s expert [*2]testified that, based upon his investigation, and his review of the documents, “only an unrestrained occupant” could have made contact with the windshield. However, in his report, which was admitted into evidence, the expert concluded that any injuries sustained by plaintiff’s assignor were “causally attributed directly” to the improper use of the seat belt. In view of the conflicting inferences that could be drawn from the assignor’s testimony and the expert’s testimony and, indeed, the ambiguous statements by defendant’s expert, we find no basis to disturb the court’s determination accepting the assignor’s testimony and finding in favor of plaintiff. Defendant’s remaining contentions are either unpreserved for appellate review or without merit.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: March 27, 2008