Opinion
No. 2010–3304 K C.
2013-05-6
KEW GARDEN IMAGING as Assignee of Manuel Ortiz, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 18, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,819.10.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a stipulation, was, for all but one claim, whether the services at issue were medically necessary. The Civil Court precluded defendant's medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.
As defendant's doctors should have been permitted to testify ( see Park Slope Med. & Surgical Supply, Inc. v. Travelers Ins. Co., 37 Misc.3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v. Progressive Ins. Co., 34 Misc.3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v. Tri–State Consumer Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ), a new trial is required.
We note that the trial also involved one claim for $60.70, to which defendant had apparently raised a workers' compensation fee schedule defense. While it appears that defendant's counsel may have meant to concede this claim at trial, the record is not clear. Thus, we remit the entire case for a new trial.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.