July 13, 2009

Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U))

Headnote

The relevant facts considered by the court were that Bronx Expert Radiology, P.C. was suing New York Central Mutual Fire Insurance Company in order to recover first party no-fault benefits. The main issue decided was whether or not the defendant's medical expert should have been permitted to testify, as the expert's opinion may have been partly based on the review of medical records prepared by the plaintiff or other physicians. The holding of the court was that the defendant's medical expert should have been permitted to testify, as his testimony on lack of medical necessity would be limited to the basis for denial set forth in the original peer review report, and his opinion may have been based, at least in part, on his review of medical records related to the treatment provided to the assignor. The judgment was reversed, with $25 costs, and the matter was remanded for further proceedings.

Reported in New York Official Reports at Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U))

Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51475(U)) [*1]

Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 51475(U) [24 Misc 3d 134(A)]

Decided on July 13, 2009

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570119/08.

Bronx Expert Radiology, P.C. a/a/o Monique Tirado, Plaintiff-Respondent,
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered November 28, 2007, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Appeal from order (Sharon A.M. Aarons, J.), entered November 28, 2007, is deemed an appeal from a judgment (same court and Judge), entered August 18, 2008, and so considered, judgment reversed, with $25 costs, and matter remanded for further proceedings.

In this action to recover first party no-fault benefits, defendant’s medical expert should have been permitted to testify, since the expert witness “would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]; see also Spruce Med. and Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert precluded from testifying because his opinion may have been based, at least in part, on his review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]) or medical records prepared by other physicians and submitted to defendant, relating to treatment provided to the assignor for injuries arising from the same motor vehicle accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 13, 2009