February 26, 2007

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))

Headnote

The court considered the motion for a directed verdict in an action to recover assigned, first party no-fault benefits. The main issue was whether defendant's expert's testimony should be precluded on the ground that the expert did not personally undertake the peer review underlying defendant's denial of the two claims at issue. The court held that it was error to preclude the expert's testimony, as he 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. The matter was remanded for trial, and the defendant's expert was not precluded from testifying because his opinion was based, at least in part, on his review of the assignors' medical records. Plaintiff could not challenge the reliability of the assignors' medical records and reports.

Reported in New York Official Reports at Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U)) [*1]

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co.

2007 NY Slip Op 50302(U) [14 Misc 3d 139(A)]

Decided on February 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., McCooe, Schoenfeld, JJ
570580/06.

Home Care Ortho. Med. Supply, Inc. a/a/o Gui Yaing Xiao, Bing Yong Gao, Jason Ng, Plaintiff-Respondent,
against
American Manufactures Mutual Insurance Co. d/b/a Kemper Insurance Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated January 30, 2006, which granted plaintiff’s motion for a directed verdict.

PER CURIAM

Order (Raul Cruz, J.), dated January 30, 2006, reversed, without costs, motion denied, and matter remanded for trial.

In this action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims here at issue. This was error, since the expert 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 (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). Nor is defendant’s expert precluded from testifying because his opinion is based, at least in part, on his review of the assignors’ medical records. Plaintiff may not be heard to challenge the reliability of the assignors’ medical records and reports, which, in response to defendant’s verification requests, were affirmatively relied upon by plaintiff as proof of claim.

This constitutes the decision and order of the court. [*2]
Decision Date: February 26, 2007