June 27, 2013

Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))

Headnote

The main issues in this case were the admissibility of a peer review report in a trial on the issue of medical necessity for first-party no-fault benefits, and whether the supplies in question were medically necessary. The court considered whether the peer review report was admissible, and whether defendant's doctor's testimony had demonstrated that the supplies in question were not medically necessary. The holding of the case was that the trial court properly admitted the peer review report into evidence, and that defendant had established the lack of medical necessity at trial through the testimony of its expert witness. Therefore, the judgment dismissing the complaint was affirmed. The appellate court found that the plaintiff's objections to the admissibility of the peer review reports and the underlying medical records lacked merit, and that the remainder of plaintiff's contentions similarly lacked merit.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U))

Alev Med. Supply, Inc. v Government Empls. Ins. Co. (2013 NY Slip Op 51096(U)) [*1]

Alev Med. Supply, Inc. v Government Employees Ins. Co.

2013 NY Slip Op 51096(U) [40 Misc 3d 128(A)]

Decided on June 27, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-240 Q C.

Alev Medical Supply, Inc. as Assignee of ALBERT DINKINS, Appellant, —
against
Government Employees Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 8, 2010. 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 to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. [*2]Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]). In the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit.

The remainder of plaintiff’s contentions similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 27, 2013