October 25, 2011

South Bronx Med., P.C. v Progressive Ins. Co. (2011 NY Slip Op 51993(U))

Headnote

The main issues in the case were whether the denial of first-party no-fault benefits by the defendant insurance company on the basis of lack of medical necessity and improper fees charged was valid. The court considered the $3,119.44 claim of South Bronx Medical, P.C. which was denied based on lack of medical necessity, and the $6,500.12 claims of Altercare Acupuncture, P.C. which was denied on the ground of improper fees charged. The trial court granted an oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C. for a directed verdict in their favor before the defendant had rested. The appellate court dismissed the appeal, stating that an oral ruling at trial, even if memorialized into a writing, is not appealable unless it is incorporated into an order or judgment. Therefore, the holding of the case was that the appeal was dismissed.

Reported in New York Official Reports at South Bronx Med., P.C. v Progressive Ins. Co. (2011 NY Slip Op 51993(U))

South Bronx Med., P.C. v Progressive Ins. Co. (2011 NY Slip Op 51993(U)) [*1]

South Bronx Med., P.C. v Progressive Ins. Co.

2011 NY Slip Op 51993(U) [33 Misc 3d 133(A)]

Decided on October 25, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-1379 K C.

South Bronx Medical, P.C. and ALTERCARE ACUPUNCTURE, P.C. as Assignees of FERNANDO HERNANDEZ, Respondents, -and MAXIMUM PHYSICAL THERAPY, P.C. as Assignee of FERNANDO HERNANDEZ, Plaintiff,
against
Progressive Insurance Company, Appellant.

Appeal from a trial ruling of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), dated August 24, 2009. The trial ruling granted the oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C., for a directed verdict in their favor.

ORDERED that the appeal is dismissed.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. Insofar as is relevant to this appeal, the action concerned a $3,119.44 claim of South Bronx Medical, P.C., which defendant had denied on the ground that there was a lack of medical necessity for the services rendered based upon the finding of a peer review report, and claims, totaling $6,500.12, of Altercare Acupuncture, P.C., which defendant had denied on the ground that improper fees had been charged. A nonjury trial was held and, before defendant had rested, the Civil Court granted an oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C. for a directed verdict in their favor. This appeal by defendant ensued.

An oral ruling at trial, even if memorialized into a writing, is not appealable, either as of right or by permission, unless it is incorporated into an order or judgment (see generally CCA 1702; CPLR 5512; Radford v Sheridan Prods., 181 AD2d 667 [1992]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 25, 2011