January 18, 2019

Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U))

Headnote

The main issue in the case was whether Lotus Acupuncture, P.C. was entitled to recover assigned first-party no-fault benefits from Country-Wide Ins. Co. After a nonjury trial, the Civil Court awarded the plaintiff the principal sum of $7,855. However, the Appellate Term, Second Department found that no testimony was taken in this particular action and that a new trial should be held. Therefore, the judgment was reversed and the matter was remitted to the Civil Court for a new trial. The relevant facts considered included the consolidation of this action with five others for the purposes of a nonjury trial, and the lack of testimony specifically related to this case. The holding of the case was that the judgment awarding the plaintiff the principal sum of $7,855 was reversed and a new trial was ordered.

Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U))

Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U)) [*1]

Lotus Acupuncture, P.C. v Country-Wide Ins. Co.

2019 NY Slip Op 50096(U) [62 Misc 3d 142(A)]

Decided on January 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1767 K C

Lotus Acupuncture, P.C., as Assignee of Expedito Holguin, Respondent,
against
Country-Wide Ins. Co., Appellant.

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,855.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $7,855 was entered accordingly.

We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019