April 16, 2009

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U))

Headnote

The relevant facts the court considered in the case of Dilon Med. Supply Corp. v Travelers Ins. Co. were that the plaintiff had proved its prima facie case for first-party no-fault benefits, and the sole issue at trial was the medical necessity of the supplies provided to the assignor. Defendant's expert medical witness testified that the durable goods provided were not medically necessary. The main issue decided was whether the supplies provided were medically necessary, and the holding of the court was that the trial court's determination in favor of the defendant was based on a fair interpretation of the evidence, as plaintiff failed to offer any rebuttal evidence to show that the supplies were medically necessary. Therefore, the judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U))

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U)) [*1]

Dilon Med. Supply Corp. v Travelers Ins. Co.

2009 NY Slip Op 50737(U) [23 Misc 3d 132(A)]

Decided on April 16, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2008-96 Q C.

Dilon Medical Supply Corp. a/a/o JOSEPH CHENET, Appellant,
against
Travelers Insurance Co., Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated November 2, 2005, deemed from a judgment of the same court entered December 21, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that plaintiff proved its prima facie case, and that defendant’s requests for verification and denial of claim forms were all mailed on the days which they were dated. The sole issue at trial was the medical necessity of the supplies which were provided to the assignor. Defendant’s expert medical witness, who had performed a peer review on defendant’s behalf, testified that the durable goods which were provided to plaintiff’s assignor were not medically necessary. In a decision dated November 2, 2005, the Civil Court found in favor of defendant and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

“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]). The testimony of defendant’s peer review doctor, which the trial court credited, established that there was a lack of medical necessity for the supplies issued to plaintiff’s assignor. Inasmuch as plaintiff failed to offer any rebuttal evidence to show that the supplies were medically necessary, we find that the trial court’s determination was based on a fair interpretation of the evidence. Accordingly, the judgment dismissing the complaint is affirmed. [*2]

Weston Patterson, J.P., Golia and Rios, JJ., concur.

Decision Date: April 16, 2009