Allstate appealed from an order of the Civil Court, Bronx County (Larry S. Schachner, J.), which, after a nonjury trial, granted plaintiffs motion to preclude defendants expert testimony and awarded judgment in favor of plaintiff.

In this action to recover assigned first-party no-fault benefits, the parties stipulated to defendants receipt of plaintiffs no-fault bills, the issuance of a timely denial by defendant, and that the sole defense was the lack of medical necessity for diagnostic computerized range of motion and muscle tests conducted by plaintiff. Defendants peer review doctor and trial expert testified that his peer review report and conclusion of lack of medical necessity were based upon a review of the records and reports prepared by plaintiff. Plaintiff moved to preclude the experts testimony on the ground that his testimony was based upon medical records not in evidence. The court granted plaintiffs motion to preclude and directed judgment in favor of plaintiff.

The Appellate Term reversed. Plaintiffs challenge to the reliability of the medical records and reports relied upon by defendants expert is unavailing given the fact that the records were prepared by plaintiffs own principal, who personally treated the assignor and conducted the tests in question (citing Hambsch v New York City Transit Authority [1984]). In these circumstances, plaintiff may not be heard to argue that defendants expert opinion was not derived from a professional reliable source or to otherwise challenge the reliability of its own medical records and reports. Moreover, defendants expert, in forming his opinion, relied upon the records only to the extent that they documented the assignors injuries, plaintiffs diagnosis and the treatment rendered.

This constitutes the decision and order of the court.

Comment: The objection by plaintiffs attorneys to testimony by peer review experts, based on the hearsay rule, has been particularly vexing to no-fault defense attorneys. The records which the plaintiffs call hearsay are the very same records that the plaintiffs themselves provided to the insurance carrier. For them to claim that these very records lack reliability because the plaintiff himself has not introduced them into evidence, would seem to be the height of audacity, and yet some judges (as the trial judge in this case) have bought that argument. Fortunately, this decision puts that charade to an end. While this is a First Department case, it is binding on the Second Department as well because there is no contrary decision from the Appellate Term of that department.

Cross Continental Medical, P.C., a/a/oSocrates Rodriguez, Albert Moradov, Benjamin Khaimov, Izik Rafailov and Edgar Quito v. Allstate Insurance Company (Appellate Term, 1st Department 2006)