A physician's affirmation and a chiropractor's affidavit will prove the lack of medical necessity of medical equipment

Last reviewed: September 2026.

Key Takeaways

• In Exclusive Med. Supply, Inc. v. Mercury Ins. Group, 2009 NY Slip Op 52273(U) (App. Term 2d Dept. 2009), the insurer established a lack of medical necessity through reasoned peer-review evidence and obtained summary judgment after the provider failed to rebut that showing.
• The successful motion included medical opinions in proper form and proof of timely denial. The opinion does not prescribe a universal requirement to annex every underlying record under CPLR 4518.
• Peer hearsay challenges grounded in Wagman v. Bradshaw, 292 AD2d 84 (2d Dept. 2002), routinely fail when the peer relies on records the provider itself generated or relied on (Bedell v. New York City Tr. Auth.; People v. Goldstein, 6 NY3d 119).
• Exclusive accepted the medical proof submitted in its record. It does not establish that merely listing a specialty defeats every qualification objection; assess the witness’s foundation and the actual challenge.
• “Medical necessity always creates an issue of fact” is not the rule — conclusory or unsupported provider responses can and do fall short on summary judgment.
• The CPLR §2106 expansion effective in 2024 eliminates the affidavit-notarization barrier, making it easier for carriers and providers to package peer review packets and rebuttal affirmations.

Medical Necessity and Peer Review: New York No-Fault Insurance Law

In New York’s complex no-fault insurance landscape, determining medical necessity for equipment and supplies represents one of the most contentious areas of litigation. Healthcare providers, insurance companies, and legal practitioners must navigate intricate evidentiary requirements to establish or challenge the medical reasonableness of prescribed equipment. Understanding how peer review doctors’ opinions can establish lack of medical necessity provides crucial insight into successful no-fault defense strategies. For the mirror-image post on what the provider must show first, see our analysis of a prima facie case of medical necessity under 11 NYCRR 65-3.16, and for additional context, the New York no-fault defense practice page and the New York No-Fault Insurance Law cornerstone.

Case Analysis: Exclusive Medical Supply v. Mercury Insurance Group

In our latest adventure to the Appellate Term, entitled Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 52273(U)(App. Term 2d Dept. 2009), we appealed a decision from the lower court that denied, outright, our motion for summary judgment.

This case centered around peer review doctors who rendered opinions finding that certain supplies lacked medical reasonableness. Annexed to the peer reports were all of the documents that the peer doctors’ relied upon. A proper affirmation from the peer review physician and an affidavit from the peer review chiropractor were procured, thereby placing the documents before the court. A claim representative’s affidavit placed the denials into evidence and demonstrated the timely handling of the denials. Importantly, and I cannot stress this enough, the documents the peer reviewers examined were annexed to the motion papers.

In opposition, Plaintiff made all of the arguments one sees in this practice:

• The denials were not mailed;
• The documents were not in admissible form;
• The peer reviews constitute inadmissible hearsay;
• The peer reviewers were not properly qualified as experts; and
• Medical necessity cannot be adjudicated on a summary judgment motion and always creates an issue of fact.

The lower court believed that Plaintiff’s submissions were sufficient to deny our motion. This necessitated an appeal and the instant decision.

I think this case is somewhat important because it cites to Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, for the propositions that a peer hearsay challenge is generally without merit. I also think the “expert witness” challenge lacks merit where the doctors state what their specialty is on the peer or IME reports and there is no evidence to demonstrate that the IME or peer reviewer is not what he or she purports to be.

Understanding No-Fault Medical Equipment Disputes in New York and Long Island

No-fault insurance disputes involving medical equipment create unique challenges for practitioners throughout New York City and Long Island. Unlike straightforward medical services, equipment claims involve complex questions about medical necessity, duration of need, and cost-effectiveness that require specialized knowledge and careful documentation.

The Role of Peer Review in Equipment Determinations

Peer review serves as the cornerstone of medical necessity determinations in New York no-fault practice. When insurance carriers receive claims for medical equipment such as wheelchairs, crutches, braces, or more complex devices, they often submit these claims for independent medical review. The peer reviewers – typically physicians or chiropractors with relevant specialization – examine the medical records and render opinions about whether the prescribed equipment meets medical necessity standards.

The effectiveness of peer review in equipment cases depends heavily on the quality of documentation provided to the reviewing professional. Medical records must include clear diagnostic information, treatment plans, functional assessments, and specific justification for the equipment prescribed. Without comprehensive documentation, even medically necessary equipment may be denied based on insufficient evidence of need.

Strategic Considerations for Nassau and Suffolk County Cases

In Long Island’s legal environment, medical equipment cases require careful attention to both medical and procedural requirements. Nassau and Suffolk County courts have consistently upheld the principle that insurance carriers can rely on peer review determinations when properly documented and presented.

For healthcare providers serving Long Island communities, understanding the documentation requirements becomes crucial for avoiding denials. Equipment prescriptions must include specific medical justifications, functional assessments, and clear connections between the patient’s condition and the prescribed equipment.

What Foundation Must a Peer Reviewer Lay to Rebut Medical Necessity?

New York courts require strict adherence to evidentiary standards in no-fault medical equipment cases. The success of summary judgment motions often hinges on the completeness and admissibility of the documentation presented.

Proper Foundation for Peer Review Evidence

The Exclusive Medical Supply case demonstrates the importance of proper foundation for peer review evidence. Key requirements include:

• Qualified peer reviewer with appropriate medical credentials
• Complete medical record review with all relevant documents
• A properly sworn or affirmed opinion, evaluated separately from any foundation required for underlying business records
• Clear documentation of the peer reviewer’s qualifications and specialty
• Identification of the materials relied upon and attention to any specific evidentiary objection

Common Evidentiary Challenges and Responses

Healthcare providers and their counsel frequently challenge peer review determinations using standard arguments. Understanding these challenges and their typical outcomes helps insurance carriers and defense attorneys prepare more effective responses.

The hearsay objection to peer review reports generally fails when the reviewing physician provides proper testimony about their review and opinions. Courts recognize that peer review falls within established exceptions to hearsay rules when properly presented.

Expert qualification challenges often lack merit when peer reviewers clearly state their medical specialties and there is no evidence contradicting their claimed qualifications. The party offering an expert opinion must establish an adequate foundation. A stated specialty is relevant but does not automatically establish expertise on every subject.

Practical Applications for New York Personal Injury Practice

Medical equipment determinations significantly impact personal injury practice throughout New York and Long Island. Both plaintiff and defense attorneys must understand how these determinations affect case values and settlement strategies.

Impact on Personal Injury Case Values

When medical equipment is determined to be medically unnecessary through peer review, this affects both current no-fault benefits and potential future medical expenses in personal injury claims. Defense attorneys can use successful peer review determinations to challenge the necessity of ongoing equipment expenses claimed by plaintiffs.

Conversely, plaintiff attorneys must be prepared to counter peer review determinations through their own medical expert testimony and comprehensive documentation of their clients’ ongoing needs.

Settlement Negotiation Considerations

Equipment necessity determinations often influence settlement negotiations in personal injury cases. When insurance carriers successfully establish that equipment lacks medical necessity, this can significantly reduce settlement values for future medical expenses.

Strategic Implications for Legal Practice

The principles established in Exclusive Medical Supply and similar cases provide important guidance for both insurance defense and healthcare provider representation in New York and Long Island.

Defense Strategy Development

Insurance defense attorneys should focus on comprehensive evidence development from the outset of equipment cases. This includes ensuring peer reviewers receive complete medical records, obtaining proper affirmations, and maintaining detailed documentation of the review process. With the CPLR §2106 affirmation reform eliminating the notarization requirement for affirmations, the mechanics of assembling these packets are lighter, but the medical reasoning and any necessary evidentiary foundation still have to be supplied.

Early identification of potential evidentiary challenges allows defense teams to address documentation gaps before they become dispositive issues in litigation.

Provider Representation Approaches

Attorneys representing healthcare providers must be prepared to challenge both the substance and procedure of peer review determinations. This requires understanding medical necessity standards, peer review requirements, and evidentiary foundations necessary for successful challenges.

Contact Experienced New York No-Fault Legal Counsel

Medical equipment disputes in New York’s no-fault system require sophisticated understanding of both medical and legal requirements. Whether you’re an insurance carrier facing provider challenges, a healthcare provider dealing with claim denials, or a personal injury client whose equipment needs are disputed, experienced legal counsel makes the difference between success and failure.

Our firm has extensive experience handling complex medical equipment determinations throughout Nassau County, Suffolk County, and the greater New York metropolitan area. We understand the intricate relationships between peer review requirements, evidentiary standards, and successful case outcomes in this specialized area of law. Additional background lives in our Legal Encyclopedia.

If you need experienced representation in no-fault medical equipment disputes or related personal injury matters, call 516-750-0595 to discuss your case. Our knowledge of New York’s no-fault system and medical necessity standards can help you achieve the best possible outcome for your situation.

Keep the published holding separate from the motion file

Exclusive Medical Supply v Mercury, decided November 5, 2009, reversed the denial of the insurer’s summary-judgment motion. The insurer proved timely mailing of its denials and submitted a physician’s affirmed peer review and a chiropractor’s affidavit supporting another review. The reports contained the medical explanation needed for the initial showing. The provider offered no medical evidence rebutting it.

My original note described certain special features of this particular set of papers, namely annexed medical records and objections made in opposition to the motion. And that was an account of how the motion was put together. But the published opinion does not mandate or say every peer review motion must have those two things as a prerequisite for all peer-review motions.

Four questions that should not be collapsed

First ask whether the defense was preserved and supported by proof of the denial’s timely mailing. The claims representative’s familiarity with the mailing procedure was part of the successful showing here.

Next examine the medical reasoning. A signature and a list of records do not explain why the disputed equipment was unnecessary. The report needs an opinion connected to the material findings in the particular file.

Then consider the evidentiary route for the expert opinion and any underlying material. An opinion’s admissible form does not automatically establish that every source document is admissible for every purpose. Identify any actual objection and the authority addressing it. The business-records guide explains why authentication and hearsay foundation are separate questions.

Finally, read the opposition. A motion supported as in Exclusive can succeed when there is no evidence creating a material factual dispute. That does not mean a judge can choose the more persuasive expert whenever opposing medical opinions conflict.

The chiropractor’s affidavit reflects the law then in use

The current CPLR 2106 permits qualifying affirmations by any person, subject to the statute’s exceptions. A chiropractor’s affidavit is no longer the only available form for such a statement. The expansion took effect in 2024; it should not be described as first occurring in 2026 because the site’s explainer was published that year.

The amendment addresses the statement’s form. It does not remove the need for knowledge supporting factual assertions, qualifications for the opinion offered, or medical reasoning. A ready-to-sign template should be checked against both the current statutory language and the clinician’s actual conclusions.

Legal Update (September 2026): Read the historic physician/chiropractor distinction in Exclusive with current CPLR 2106 and the current affirmation guide. The published opinion does not impose a universal annex-every-record rule.

Connect to the Encyclopedia

Start with the medical-necessity and peer-review hub. Use these related notes to compare the initial showing, the response and the result:

• Two medical-necessity reversals and trial-limiting findings

• Amherst: the insurer’s initial proof failed

• Enko: supplies and existing treatment

• Park Slope: competing proof requires trial

• Current CPLR 2106 affirmation requirements

For help assessing a pending claim or motion, contact the firm with the denial, medical reports, motion papers and any court order. This historical discussion is general information, not advice on a particular file.