No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Archive for the ‘4404(a) & weight of evidence review’ Category

Speciality Surgical Servs. v Travelers Ins. Co., 2010 NY Slip Op 50715(U)(App. Term 2d Dept. 2010)

“At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.”

There was also a discussion regarding the validity of an assignment of benefits, but this issue was foreclosed due to the failure to address it during the claims stage.

I am more intrigued by the summary reversal of the District Court’s decision, after trial, that the services lacked medical necessity.  Of course, we have no idea whether the reversal was on the law (CPLR 4404[a]), in the exercise of the appellate court’s broad discretion, or based upon the appellate court’s opinion that the trial court’s decision was against the weight of the evidence.  Also, it is interesting how the court made mention of a peer report which, in effect, bolstered the peer doctor’s testimony.

I would hope, for the plaintiff’s bar, that the District Court sat solely as a proverbial “13th juror”, which would render the reversal as based upon the decision being against the weight of the evidence.  If this decision was based on the law, then it would appear that as long as the testimony is not conclusory and supported by admissible evidence, a trial court is bound to find for the defendant absent rebuttal testimony.

I would like to see the appellate courts evaluate more of these unrebutted medical necessity trial cases, before I come to any conclusions.

Acosta v City of New York,2010 NY Slip Op 02910 (2d Dept. 2010)

Pursuant to CPLR 4404(a), the trial court “may set aside a verdict . . . and direct that judgment be entered in favor of a party entitled to judgment as a matter of law.” A court may set aside a jury verdict as unsupported by legally sufficient evidence only if there is ” simply no valid [*2]line of reasoning and permissible inferences which could possibly lead rational [individuals] to the conclusion reached by the jury on the basis of the evidence presented at trial’” (Soto v New York City Tr. Auth., 6 NY3d 487, 492, quoting Cohen v Hallmark Cards, 45 NY2d 493, 499). In considering such a motion, ” the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’” (Hand v Field, 15 AD3d 542, 543, quoting Szczerbiak v Pilat, 90 NY2d 553, 556).

Contrary to the plaintiff’s contention, viewing the facts in the light most favorable to him, there was no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiff’s version of the events was “manifestly untrue, physically impossible, or contrary to common experience, and such testimony should be disregarded as being without evidentiary value” (Cruz v New York City Tr. Auth., 31 AD3d 688, 690, affd 8 NY3d 825). We note that the record is replete with instances where the testimony and other evidence adduced by the plaintiff was manifestly untrue and tailored to avoid the consequences of previous statements made by him to disinterested nonparty witnesses. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law.”

This is just bad.