September 2, 2008

Supple Mind Acupuncture, P.C. v State Farm Ins. Co. (2008 NY Slip Op 51856(U))

https://www.beynensonlaw.com/case-law/supple-mind-acupuncture-p-c-v-state-farm-ins-co-2008-ny-slip-op51856u/

Court
Appellate Term, Second Department
Decided
September 2, 2008
Citation
2008 NY Slip Op 51856(U) · 20 Misc 3d 144(A)
Posture
Trial
Outcome
Provider prevailed
Issues
Trial and evidence Staged accidents, lack of coverage
Legal questions
No covered accident (founded belief) (see the maps)
Cite as
Supple Mind Acupuncture, P.C. v State Farm Ins. Co., 20 Misc 3d 144(A), 2008 NY Slip Op 51856(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's causation expert failed to establish that the hearsay materials supporting the opinion were accepted as reliable in the profession. At a nonjury trial, the parties stipulated to the provider's prima facie case and timely denials, leaving accident causation as the sole issue. The insurer's only witness relied on a police report, vehicle photographs, and a repair estimate. Under Hambsch v New York City Tr. Auth., expert reliance on out-of-court material required proof of professional acceptance. Without that proof, the testimony and report were inadmissible. The provider's failure to object did not permit a judgment resting entirely on hearsay. The Appellate Term, Second Department, affirmed the judgment for the provider.

Reported in New York Official Reports at Supple Mind Acupuncture, P.C. v State Farm Ins. Co. (2008 NY Slip Op 51856(U))

[*1]
Supple Mind Acupuncture, P.C. v State Farm Ins. Co.
2008 NY Slip Op 51856(U) [20 Misc 3d 144(A)]
Decided on September 2, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-569 Q C.
Supple Mind Acupuncture, P.C. a/a/o Ruth Gaston, Respondent,

against

State Farm Insurance Company, Appellant.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), dated August 15, 2006, deemed from a judgment of the same court entered January 11, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,228.36.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff proved its prima facie case, that defendant timely and properly denied the claims and that the claims were denied based upon an injury causation analysis prepared by defendant’s expert witness. The sole issue at trial was whether plaintiff’s assignor’s alleged injuries were caused by the accident. The only witness was defendant’s expert, who testified, without objection, that the force of the impact was minimal and that plaintiff’s assignor’s injuries could not have been caused by the accident. He further stated that his opinion was based upon his review of the police accident report, which included statements by the drivers of the vehicles, photographs of the vehicles and a repair estimate. The court entered judgment for plaintiff, holding that because the expert’s testimony and report relied almost exclusively upon statements and documents which were hearsay, defendant failed to sustain its burden of proof. This appeal by defendant ensued.

“[A]n expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion’ ” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984], quoting People v Sugden, 35 NY2d 453, 460 [1974]). The proponent of such testimony may satisfy its “burden of showing acceptance in the profession . . . through the testimony of a qualified expert” (People v Goldstein, 6 NY3d 119, 124-125 [2005]). In the [*2]instant case, defendant did not elicit any testimony from its expert which could support a conclusion that the material he relied upon in forming his opinion was “of a kind accepted in the profession as reliable in forming a professional opinion” (Goldstein, 6 NY3d at 125; see also Sugden, 35 NY2d at 460). Consequently, the testimony of the expert witness and his report were inadmissible (Hambsch, 63 NY2d at 726).

Although defendant contends that it was nevertheless entitled to judgment dismissing the complaint because plaintiff did not object to the testimony by defendant’s expert, “[n]o judgment, even in a small claims action, can rest entirely on hearsay evidence” (Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]; see also Arnold Herstand & Co. v Gallery: Gertrude Stein, Inc., 211 AD2d 77 [1995]; Levins v Bucholtz, 2 AD2d 351 [1956]; Prince, Richardson on Evidence § 8-108 [Farrell 11th ed] [citations omitted]). Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

Similar decisions