IAV Med. Supply, Inc. v Progressive Ins. Co., 2010 NY Slip Op 50433(U)(Civ. Ct. Richmond Co. 2010)
Here is a civil court decision from Judge Dollard in Civil Richmond, which is well written and correct in all respects on the law. First, she found that a 3101(d) demand, although tardy, was proper since plaintiff was not in any way prejudiced. Second, she found that a claims representative could not lay a foundation for entry into evidence of the report of a a non-testifying peer review doctor. Why someone would go down this road, especially with Pine Hollow being reversed, boggles my mind. Moreover, I also tend to think that the admission of a peer report into evidence is tantamount to improper bolstering, since the report memorializes what the doctor – or his substitute – will testify about. It is similar to a police officer telling a jury that the complainant identified the defendant, after the complainant herself identified the defendant to the jury. Those of you who have a criminal practice know that this is improper. People v Trowbridge, 305 NY 471 (1953).
As to whether the doctor, through his testimony satisfied his burden of persuasion, I have no idea; and for purposes of this discussion, it is irrelevant. What is relevant, however, is the path this court took to reach its decision. And this was “on the mark”.
