March 29, 2019
Advanced Orthopedics, PLLC v GEICO (2019 NY Slip Op 50500(U))
https://www.beynensonlaw.com/case-law/advanced-orthopedics-pllc-v-geico-2019-ny-slip-op-50500u/
- Court
- Appellate Term, Second Department
- Decided
- March 29, 2019
- Citation
- 2019 NY Slip Op 50500(U) ยท 63 Misc 3d 136(A)
- Posture
- Trial
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 1 later decision (see Cited by)
- Legal questions
- Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at Advanced Orthopedics, PLLC v GEICO (2019 NY Slip Op 50500(U))
[*1]| Advanced Orthopedics, PLLC v GEICO |
| 2019 NY Slip Op 50500(U) [63 Misc 3d 136(A)] |
| Decided on March 29, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-156 Q C
against
GEICO, Respondent.
Jonathan B. Seplowe, Esq. (Damin J. Toell of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered February 11, 2016. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited, pursuant to a stipulation, to defendant’s defense of lack of medical necessity for the knee surgery at issue. Defendant’s expert witness testified that the surgery was not medically necessary because it was not causally related to the accident in question, while plaintiff presented its own expert witness who rebutted defendant’s witness’s testimony. The Civil Court dismissed the complaint, finding defendant’s witness to be “credible, worthy of belief, and persuasive.”
In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). As the record supports the determination of the Civil Court with respect to the lack of medical necessity of the knee surgery, which was based upon its assessment of the credibility of the witnesses, we find no basis to disturb the Civil Court’s finding with respect thereto.
Accordingly, the judgment is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 29, 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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it
Affirmed dismissal after trial because the trial court credited the insurer's expert that the knee surgery was not medically necessary, being causally unrelated, over the provider's rebutting expert.
Of the 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v Mark S. McMahon MD, P.C. (2022 NY Slip Op 50716(U)) Contrasted (cf., but see)A master arbitrator may not reweigh evidence or resolve credibility disputes anew in reviewing a no-fault award.
Similar decisions
- Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form.
- 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.
- Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))The parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity.
- Main St. Medcare, P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 50686(U))The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay.