Comprehensive Psychological Servs. of NY, P.C. v. GEICO Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 19, 2017
• Docket: 2017 NYSlipOp 51815(U)
• Status: Published

Opinion

Comprehensive Psychological Services of NY, P.C., as Assignee of Matthew Loboen, Appellant,

against

GEICO Insurance Company, Respondent.

Korsunskiy Legal Group, P.C. (Henry R. Guindi, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 22, 2015. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court which, after a nonjury trial, dismissed the complaint.

The issue at trial was whether the services in question were medically necessary. The Civil Court accepted defendant's expert witness's testimony and found that defendant had satisfied its burden of demonstrating that the services were not medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). It was then plaintiff's burden to prove, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff failed to submit any evidence to meet that burden. Plaintiff's arguments regarding the Civil Court's limitation of its cross-examination of defendant's expert witness are without merit (see Feldsberg v Nitschke, 49 NY2d 636 [1980]).

Accordingly, the judgment is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017