Opinion
No. 2012–497 K C.
2014-07-28
QUALITY HEALTH PRODUCTS, INC. as Assignee of Pedro Pina and Blasina Acosta, Respondent, v. TRAVELERS INDEMNITY CO., Appellant.
Present: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jules L. Spodek, J.H.O.), entered April 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $970.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial before a judge or a different judicial hearing officer, limited to the issue of medical necessity.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a so-ordered stipulation, was whether the medical equipment that had been supplied to plaintiff's assignor was medically necessary. After a nonjury trial before a judicial hearing officer, a judgment was entered in favor of plaintiff in the principal sum of $970.
At the trial, the judicial hearing officer refused to allow defendant's expert witnesses to testify as to their opinions of the medical necessity of the supplies at issue on the ground that the underlying medical records of plaintiff's assignors that the witnesses had reviewed were hearsay, explicitly stating that he did not “follow” 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] ).
As this court has previously held, defendant's witnesses should have been permitted to testify as to their opinions regarding the medical necessity of the supplies at issue, and it was error to preclude their testimony on hearsay grounds ( 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]; see also Kew Garden Imaging v. State Farm Mut. Auto. Ins. Co., 39 Misc.3d 140[A], 2013 N.Y. Slip Op 50748[U] [App Term, 2d, 11th & 13th Jud Dists 2013] ). Defendant's witnesses were not required to establish the truth of the facts set forth in the underlying medical records, since defendant is not relying on those documents to prove the facts of plaintiff's assignors' alleged injuries or treatment ( cf. e.g. Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723 [1984]; Wagman v.. Bradshaw, 292 A.D.2d 84 [2002] ).
We note that, contrary to the belief of the judicial hearing officer in this case, the Civil Court is bound by the decisions of this court ( see 28 N.Y. Jur 2d, Courts and Judges § 220).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial before a judge or a different judicial hearing officer, limited to the issue of medical necessity.