Opinion
2010-918 K C.
Decided July 8, 2011.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,078.48.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that the sole issue to be litigated would be whether the services rendered to plaintiff's assignor were medically necessary. At a nonjury trial, the Civil Court granted plaintiff's motion to preclude the testimony of defendant's witness, the psychologist who had prepared the peer review report upon which defendant's claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48.
In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying ( see Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. , 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d 11th Jud Dists 2007]; Spruce Med. Diagnostic, P.C. v Lumbermen's Mut. Cas. Co. , 15 Misc 3d 143 [A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept 2007]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co. , 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Accordingly, the judgment is reversed and the matter is remitted for a new trial.
Weston, J.P., Pesce and Rios, JJ., concur.