Mkt. St. Surgical Ctr.v.Global Liberty Ins. Co.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTSDec 7, 2018
2017-562 K C (N.Y. App. Div. 2018)
2017-562 K C2018 N.Y. Slip Op. 51822

2017-562 K C

12-07-2018

Market Street Surgical Center, as Assignee of Diawara Bakary, Respondent, v. Global Liberty Insurance Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Pinczewski and Shpelfogel, P.C. (Damin J. Toell of counsel), for respondent.


PRESENT: :

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant.

Pinczewski and Shpelfogel, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 6, 2017. The order denied defendant's motion, pursuant to CPLR 4404 (b), to set aside a decision of the Civil Court made after a nonjury trial.

ORDERED that the order is reversed, without costs, defendant's motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers' compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issues for trial would be whether the services that had been rendered were medically necessary and whether plaintiff had properly billed in accordance with the workers' compensation fee schedule, as all elements of plaintiff's case had been established and defendant had timely denied the claim. At a nonjury trial, plaintiff's attorney moved to preclude defendant's expert witnesses on the grounds that disclosure of those witnesses was untimely and that disclosure had been made by facsimile transmission, a method of notice which plaintiff's counsel had previously rejected. Defense counsel argued that there would be no prejudice to plaintiff as a result of the testimony, and counsel advised the court that his witnesses were present to testify. On February 9, 2016, the Civil Court granted plaintiff's motion to preclude the witnesses, stating that it did not think that prejudice was an issue but "we have to move these cases timely." On February 24, 2016, defendant timely moved, pursuant to CPLR 4404 (b), to set aside the decision, and plaintiff opposed the motion. By order entered January 6, 2017, the Civil Court denied defendant's motion.

"CPLR 3101 (d) (1) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999] [internal quotation marks omitted]; see Burbige v Siben & Ferber, 115 AD3d 632, 633 [2014]). While defendant's service of the expert witness notices at issue should have been more prompt (see Cutsogeorge, 264 AD2d at 754) and made by mail as requested by plaintiff, the Civil Court erred in precluding defendant's expert witnesses, as the record clearly demonstrates that there was no showing by plaintiff that defendant had intentionally or willfully failed to promptly disclose, or that plaintiff had been prejudiced.

Accordingly, the order is reversed, defendant's motion to set aside the decision of the Civil Court is granted, and the matter is remitted to the Civil Court for a new trial limited to the issues of medical necessity and billing pursuant to the workers' compensation fee schedule.

WESTON, J.P., PESCE and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 07, 2018