Promed Orthocare Supply, Inc. v Geico Ins. Co. (2017 NY Slip Op 51264(U))

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,051.81.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for various medical supplies it had provided to its assignor, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). As to the medical necessity of the cervical traction unit for which recovery is sought in the second cause of action, which is the sole issue raised on appeal, defendant’s expert witness testified that he had reviewed the assignor’s medical records and that the cervical traction unit was not medically necessary. After awarding plaintiff a directed verdict on the first cause of action, the Civil Court stated, with regard to the second cause of action, that it had “no choice but to find in favor of the plaintiff,” as there was no proof as to the findings of the author of the peer review report upon which the denial of claim had been based, and therefore the court had no way of knowing whether defendant’s expert witness agreed or disagreed with the original peer reviewer. A judgment was subsequently entered awarding plaintiff $549.18 on the first cause of action and $502.63 on the second cause [*2]of action, as well as statutory interest and attorney’s fees.

The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141[A], 2012 NY Slip Op 51490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report. As plaintiff here failed to make an appropriate objection, it was error for the Civil Court to have disregarded the testimony of defendant’s witness. Consequently, a new trial is required on the second cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.