February 7, 2014

Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U))

Headnote

The court considered the issue of whether the medical devices provided to plaintiff's assignor were medically necessary in an action to recover assigned first-party no-fault benefits. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $1,809.20. However, the defendant appealed, arguing that the medical devices provided were not medically necessary. The defendant's doctor testified that the cervical and lumbar traction units provided by the plaintiff were not medically necessary, and the court found his testimony to be "wholly credible." As a result, the judgment was reversed, and the matter was remitted to the Civil Court for the entry of judgment in favor of the defendant dismissing the complaint. The holding of the case was in favor of the defendant, as the court determined that the defendant established that the medical devices at issue were not medically necessary.

Reported in New York Official Reports at Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U))

Provvedere, Inc. v Republic W. Ins. Co. (2014 NY Slip Op 50219(U)) [*1]

Provvedere, Inc. v Republic W. Ins. Co.

2014 NY Slip Op 50219(U) [42 Misc 3d 141(A)]

Decided on February 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ
2011-3137 RI C.

Provvedere, Inc. as Assignee of JASON DOWDY, Respondent,
against
Republic Western Insurance Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014