Medical Necessity Evidence Standards in No-Fault Law | Long Island Lawyer | Jason Tenenbaum

The March 12, 2009 decision in Park Slope Medical & Surgical Supply v New York Central Mutual left the insurer’s summary-judgment motion denied. The Appellate Term held that the provider’s doctor’s affidavit raised a factual dispute over the necessity of the supplies.

Legal Update (September 2026): Elmont Open MRI (2010) rejected the automatic missing-records objection discussed in this 2009 note and distinguished a peer review’s nonhearsay use of the treatment records.

Last reviewed: September 2026.

What changed after the original comment

The court expressly found the insurer had made its initial showing through timely-denial and medical evidence. It did not say that missing records defeated the insurer’s motion. Jason’s discussion below assumed missing records for argument’s sake; that assumption should not be read as a finding in Park Slope.

In Elmont Open MRI v New York Central Mutual (December 2010), the Appellate Term rejected a lower court’s conclusion that failing to annex the underlying records defeated the peer-review showing. The reviewer assumed the reported facts and addressed whether the treatment was necessary; the records were not offered to prove an injury occurred. The provider also failed to show a need for further discovery under CPLR 3212(f).

Elmont’s reasoning depended on the purpose for which those records were used. It also means the original prediction below is not a safe statement of a present-day automatic attachment rule. Pan Chiropractic (July 2009) separately rejected opposition that did not meaningfully discuss a supported peer review. Park Slope should not be read as a universal approval of boilerplate affidavits.

Jason’s original comment

Jason’s March 2009 comments follow unchanged. The missing-records discussion is an express hypothetical, and the broader account of summary-judgment practice is his criticism at that time. Read those views alongside the later authority above, not as current procedural instructions.

It bears in mind that the “Dr. Shapiro” affidavit is boilerplate in nature, having seen a few of them. Yet, under the circumstances of this case, I cannot say the court was wrong in its holding.

Assume for argument sake that Defendant failed to annex the documents his expert relied upon in forming his file based review. This is probably a valid assumption knowing what these motions tend to look like. In this instance, the Court should have found that Defendant did not meet its burden, and should have actually granted Plaintiff summary judgment. A peer report in opposition to a summary judgment motion that does not disclose the peer documents the reviewer relied upon simply fails to raise a triable issue of fact. Yet, until the Appellate Term addresses that issue, it is fair to say that the Court really did not have a choice but to find that Plaintiff raised an issue of fact. Between the lines, the court was asking how a Plaintiff could honestly oppose a file review without the file? Hopefully, the Court in the future will cite to Cariddi v. Hassan and skip the step of finding a medical provider’s conclusory affidavit to be sufficient to oppose a non-supported peer report.

I suspect that this is just the beginning of the development as to this discreet area of no-fault law.

I would add this remark. The trend in New York practice has been to transform summary judgment motions from the traditional of “issue finding” into an exercise in “issue determination”. In other words, the courts used to deny summary judgment motions should there be a specter of a factual issue lurking somewhere. Now, the motion court will determine the merits of the issue on a motion for summary judgment.

This above trend is remarkable since every lower court decision that discusses an SJ motion always cites to the Court of Appeals cases, which hold that even the specter of a triable issue of fact should defeat a summary judgment motion. Shakespearean overtones I suspect – appearance verses reality.

But in the modern realities of life, the courts are telling the litigants that if you want a plenary trial, you need to earn it. In no-fault we had this shoved down our throats through “Dan Medical” and “Contempt v. Geico” prior to “Delta v. Chubb” and “St. Vincent v. Geico.” In the analogous 5102(d) land, “Toure” and “Pommels” proved this point too well. The list goes on and on…

Thus, we shall see how the lack of medical necessity jurisprudence develops. I just hope it does not suffer the same inconsistencies that we have found in the “EUO” default contexts.

Connect to the Encyclopedia

Start with the medical-necessity case directory.

• Darlington: an affidavit without medical foundation
• Innovative Chiropractic: a treating doctor’s bare reaffirmation
• Prime Psychological: inadequate opposition and two contrasting outcomes
• New Life Medical: two peer reviews left unanswered

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