December 7, 2018

Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51823(U))

Headnote

The main issues decided in this case were whether the services rendered were medically necessary and whether the plaintiff had properly billed in accordance with the workers' compensation fee schedule. During a nonjury trial, the plaintiff's attorney moved to preclude the defendant's expert witnesses on the grounds of untimely disclosure and that it had been made by facsimile transmission, a method of notice which the plaintiff's counsel had previously rejected. The Civil Court granted the plaintiff's motion to preclude the witnesses, and later denied the defendant's motion, pursuant to CPLR 4404 (b), to set aside the decision. The Appellate Court reversed the order and held that the defendant's motion should have been granted. The matter was remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers' compensation fee schedule.

Reported in New York Official Reports at Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51823(U))

Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51823(U)) [*1]
Market St. Surgical Ctr. v Global Liberty Ins. Co.
2018 NY Slip Op 51823(U)
Decided on December 7, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2018

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


PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2017-568 K C
Market Street Surgical Center, as Assignee of Diawara Bakary, Respondent,

against

Global Liberty Insurance Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Pinczewski and Shpelfogel, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 6, 2017. The order denied defendant’s motion, pursuant to CPLR 4404 (b), to set aside a decision of the Civil Court made after a nonjury trial.

ORDERED that the order is reversed, without costs, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issues for trial would be whether the services that had been rendered were medically necessary and whether plaintiff had properly billed in accordance with the workers’ compensation fee schedule, as all elements of plaintiff’s case had been established and defendant had timely denied the claim. At a nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witnesses on the grounds that disclosure of those witnesses was untimely and that disclosure had been made by facsimile transmission, a method of notice which plaintiff’s counsel had previously rejected. Defense counsel argued that there would be no prejudice to plaintiff as a result of the testimony, and counsel advised the court that his witnesses were present to testify. On February 9, 2016, the Civil Court granted plaintiff’s motion to preclude the witnesses, stating that it did not think that prejudice was an issue but “we have to move these cases timely.” On February 24, 2016, defendant timely moved, pursuant to CPLR 4404 (b), to set aside the decision, and plaintiff opposed the motion. By order entered January 6, 2017, the Civil Court denied defendant’s motion.

For the reasons stated in Market St. Surgical Ctr., as Assignee of Diawara Bakary v Global Liberty Ins. Co. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2017-562 K C], [*2]decided herewith), the order is reversed, defendant’s motion to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers’ compensation fee schedule.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018