PSYCHIATRIC CARE v. KEMPER CO.
| Decision Date | 03 November 2003 |
| Court | New York Civil Court |
| Parties | GENERAL PSYCHIATRIC EVALUATION & CARE, P.C., as Assignee of JEANOR WILLIAMS, Plaintiff,<BR>v.<BR>KEMPER INSURANCE COMPANY, Defendant. |
Mandell & Santora, Lynbrook, for plaintiff.
Lawrence Rogak, Oceanside, for defendant.
This matter appeared on the part 15 trial calendar and was assigned to this part for trial. The attorneys indicated to the court that they wished to proceed by submission pursuant to a written stipulation. Though the action was not commenced as an action on submitted facts, it appeared that the parties wished to proceed at this juncture in the manner provided for in CPLR 3222.
The parties stipulated, among other facts, to the date of the automobile accident, the existence of no-fault coverage by the defendant, the receipt by the defendant of the claim for no-fault benefits and the defendant's denial of claim form. While the parties stipulated that the controversy at issue was whether the procedures performed by the plaintiff were medically necessary, the affidavits in support of the positions of the respective parties indicated opposite positions as to that issue. One such opposing position is whether the assignor had any prior significant psychiatric history. While the defendant asserts that the claimant has a history of alcohol abuse, the claimant's physician claims that she had no prior significant psychiatric or drug history. The determination to be made by the court is not one of law based upon agreed upon facts, but a determination based on the facts as differently presented by the parties. When proceeding by submission, all facts necessary to a complete determination of controversy must be unequivocally stipulated. (Satterfield v Manufacturers & Traders Trust Co., 272 App Div 127 [4th Dept 1947].)
This case is therefore not one to be presented by submission. The trier of the facts, in this case the judge, should not be limited in its evaluation of the testimony. The trier of the facts should have the opportunity to assess the demeanor of the witnesses on the stand, and to ask questions of the witnesses concerning their testimony about complex medical issues. The demeanor of witnesses may be of enormous importance where the trier of fact must decide which witnesses to believe, what portion of their testimony is to be accepted and what weight is to be ascribed thereto. (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1 [1st Dept 1997].)
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Behavioral Diagnostics v. Allstate Ins. Co., 2004 NY Slip Op 24041 (NY 2/11/2004)
...Co., 196 Misc 2d 656 [Civ Ct, Queens County 2003]). The determination of the issue turns on credibility (General Psychiatric Evaluation & Care v. Kemper Ins. Co., 1 Misc 3d 499 [Civ Ct, Queens County 2003]), since courts cannot rely solely on the examining physician (Oceanside Med. Healthca......
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BEHAVIORAL v. Allstate Ins. Co.
...Ct, Queens County 2003]). The determination of the issue turns on credibility (General Psychiatric Evaluation & Care v Kemper Ins. Co., 1 Misc 3d 499 [Civ Ct, Queens County 2003]), since courts cannot rely solely on the examining physician (Oceanside Med. Healthcare v Progressive Ins., 2002......
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Table of Cases
...Co 1965), aff’d 24 AD2d 757, 263 NYS2d 470 (2d Dept 1965), §8:122 General Psychiatric Evaluation & Care, P.C. v. Kemper Insurance Co. , 1 Misc3d 499, 769 NYS2d 838 (Civ Ct Queens Co 2003), §38:121 Genesee Scrap and Tin Baling Corp. v. Lake Erie Bumper Plating Corp. , 57 AD2d 1068 (4th Dept ......
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Table of Cases
...Co 1965), aff’d 24 AD2d 757, 263 NYS2d 470 (2d Dept 1965), §8:122 General Psychiatric Evaluation & Care, P.C. v. Kemper Insurance Co. , 1 Misc3d 499, 769 NYS2d 838 (Civ Ct Queens Co 2003), §38:121 Genesee Scrap and Tin Baling Corp. v. Lake Erie Bumper Plating Corp. , 57 AD2d 1068 (4th Dept ......
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Expedited Judgment: CPLR 3213; 3222
...the case cannot be determined under the simplified procedure. [ General Psychiatric Evaluation & Care, P.C. v. Kemper Insurance Co. , 1 Misc3d 499, 769 NYS2d 838 (Civ Ct Queens Co 2003).] §38:122 Court May Not Consider Facts Outside the Submission The court may not consider facts other than......
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Expedited Judgment: CPLR 3213; 3222
...the case cannot be determined under the simplified procedure. [ General Psychiatric Evaluation & Care, P.C. v. Kemper Insurance Co. , 1 Misc3d 499, 769 NYS2d 838 (Civ Ct Queens Co 2003).] §38:122 Court May Not Consider Facts Outside the Submission The court may not consider facts other than......