Progressive Med., Inc. v Allstate Ins. Co. (2010 NY Slip Op 50219(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, Second District (Sondra K. Pardes, J.), dated August 1, 2005, deemed from a judgment of the same court entered December 17, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,123.75, plus statutory interest and attorney’s fees.

This action by a provider to recover assigned first-party no-fault benefits was tried before a judge on July 11, 2005. At trial, the court stated, on the record, that “there’s a limited issue in this trial and that’s the issue of medical necessity.”
Defendant’s attorney confirmed this to be the case. The court also stated, “I don’t think there’s any dispute that a form – – a claim was submitted, that it was denied, the denial was timely, the issue was medical necessity. We all understand that.” The court asked for a copy of the “claim form,” which was apparently provided, but not entered into evidence.

Defendant proffered the testimony of its peer review doctor, who testified that the medical equipment billed for was not medically necessary. On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

Following the trial, the court dismissed plaintiff’s complaint, finding, in a written decision, that plaintiff “specifically declined to present a prima facie case.” We reverse.

Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.

Accordingly, plaintiff is entitled to an award in the principal sum of $1,123.75. The matter is remitted to the District Court for the calculation of statutory interest, an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and the entry of judgment.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 05, 2010