94 Misc. 2d 549 | N.Y. City Civ. Ct. | 1978
OPINION OF THE COURT
This was a nonjury case for personal injuries suffered by a pedestrian after coming in contact with defendant’s bus on January 24, 1975. After the completion of the trial, the court found the defendant negligent and the plaintiff free from contributory negligence. However, there remained to be resolved a perplexing question as to whether the plaintiff suffered a "serious injury” within the meaning of subdivision 4 of section 671 of the Insurance Law (L 1973, ch 13).
Plaintiff attempted to satisfy the threshold requirements by introducing into evidence $612 of medical bills (pursuant to CPLR 4533-a). The defendant challenged the introduction of a number of the bills, but the only one that has created a problem is the last bill for $155 for X-ray services rendered more than 10 weeks after the accident. What creates the problem is the fact that there was no medical testimony whatsoever and the elimination of this bill would nonsuit the plaintiff by reducing the amount paid for medical services below the minumum requirement of $500 ($612 — $155 = $457).
First, plaintiff contends that even if testimony of her own pain and suffering was limited to eight weeks (Civil Court Directive No. 428), this only affects her recovery for general damages. It should have no bearing upon her ability to prove special damages. This she claims that she can do by the statutory permission given under CPLR 4533-a. CPLR 4533-a reads in part as follows: "An itemized bill * * * for services * * * is prima facie evidence of the reasonable value and necessity of such services”.
If CPLR 4533-a was a rule of evidence which stood by itself, independent of any other rules of evidence, then plaintiff’s contention would be valid. However, such was not the intention. Professor McLaughlin in his Supplementary Practice Commentary to CPLR 4533-a (McLaughlin, 1970 Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 4533-a) states: "The new rule does not — as it
While the plaintiff is correct in her contention that the bill itself (once properly introduced under CPLR 4533-a) is prima facie evidence of the reasonableness and necessity of the bill, it is nevertheless incompetent evidence without causal connection to the injury (McLaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 4533-a, p 216). It is elementary that a plaintiff is entitled to recover only those medical expenses which were necessarily incurred to correct an injury caused by the defendant (Statler v Ray Mfg. Co., 195 NY 478). Except in the clearest of cases,
The second major point raised by plaintiff is that defendant is estopped from challenging the bills for medical services because of an arbitration award and defendant’s subsequent payment of the bills. The defendant, a self-insurer, originally challenged plaintiff’s claim for first-party benefits on grounds of laches.
Plaintiff claims the arbitrator’s award created an issue
Plaintiff raised one final argument on this question of "issue preclusion”, upon which there was very little precedent; and what little there is, is in plaintiffs favor. Plaintiff states that under the no-fault law, the insurer has the right to contest the reasonableness and necessity of the medical bills. If contested, the claimant has the option of submitting the issue to binding arbitration or commencing a lawsuit (Insurance Law, § 675, subd 2). Since defendant and the insurer are the same party (defendant being a self-insurer), the defendant (having already paid the bills) is estopped from challenging the necessity of the bills at the trial. In support of this argument plaintiff cites two Supreme Court cases (in the Second Dept) wherein the plaintiffs were successful in (pretrial motions) striking the defendant’s defense of "failure to meet the threshold requirements” (Shalem v Teitelbaum, 84 Misc 2d 596; Greenblatt v Johannssen, 80 Misc 2d 436). However, we do not believe the courts in those two decisions considered the rationale expressed in the succeeding paragraph.
The legislative purpose of section 673 of the Insurance Law was to limit lawsuits for pain and suffering only to cases of "serious injury”. To permit plaintiff to "boot-strap” her injury by introducing evidence that is not otherwise admissible, would be a travesty of the law. Defendant had no way of knowing that plaintiff could not causually connect Dr. Jalen’s bill to the injury when it paid the bill; and is therefore entitled to challenge its introduction at the trial.
Judgment for defendant. Plaintiff’s cause of action is dismissed for failure to meet the threshold requirements of the no-fault law.
. Civil Court Administrative Directive No. 428 (issued February 11, 1977) gives as examples of "exceptions” to the general rule two cases involving a crushed finger and an amputated toe (Meiselman v Crown Heights Hosp., 285 NY 389 and Shaw v Tague, 257 NY 193).
. Defendant had sent the plaintiff forms for a no-fault claim on January 29, 1975 (five days after the accident), but plaintiff did not respond until May 10, 1976. However, the arbitrator found that defendant had not made any effort to follow up on its January 29, 1975 mailing; and, therefore, held that the plaintiff was not precluded from pressing her claim.
. Restatement, Judgments 2d prefers the nomenclature "issue preclusion” and "claim preclusion” in place of the terms "collateral estoppel” and "res judicata.”