Key Takeaway
B.Y., M.D. v Progressive upheld dismissal on supported medical proof and an incomplete opposing affirmation, not a new burden of proof.
This article is part of our ongoing medical necessity coverage, with 171 published articles analyzing medical necessity issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
B.Y., M.D. v Progressive is useful for a concrete reason: the insurer’s medical showing was supported, while the opposing affirmation in the record was apparently missing a page. It was not a decision replacing the insurer’s initial burden.
Last reviewed: September 2026.
Historical note: B.Y., M.D. assessed the medical submissions actually in the record, including an apparently incomplete opposing affirmation. Read the 2010 decision.
The actual record
In B.Y., M.D., P.C. v Progressive Casualty Insurance Co., 2010 NY Slip Op 50144(U), decided January 28, 2010, providers sought partial summary judgment. Progressive cross-moved to dismiss various claims for lack of medical necessity. Its peer-review and IME submissions explained the medical reasons for that position.
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The portion of the treating doctor’s affirmation in the record did not discuss or answer those reasons. The Appellate Term affirmed the challenged order denying the providers’ motion and granting the insurer’s cross-motion. The court reached no other issue.
What to take from the missing page
The opinion identifies both an incomplete submission and inadequate opposition in the pages available. It does not tell us what the missing page said or whether supplying it would have changed the result. The decision applied an existing burden to that record. It did not measure effects on settlement negotiations.
For today’s motion framework, CPLR 3212(b) addresses the proof needed for judgment and facts requiring a trial.
Frequently Asked Questions About Medical Necessity Determinations
What constitutes sufficient medical evidence to counter an insurance carrier’s medical necessity challenge?
The evidence must engage with the asserted medical reasons. B.Y., M.D. found the available opposition insufficient; it did not prescribe a universal checklist.
How has the Progressive decision changed settlement negotiations in medical necessity cases?
The opinion does not establish an effect on negotiations. Its holding concerns the motion record.
What documentation should healthcare providers maintain to avoid medical necessity disputes?
This ruling does not promise that particular records prevent disputes. It illustrates why the filed evidence must be complete and responsive.
Can peer review reports alone establish lack of medical necessity?
That broad question was not decided here: Progressive submitted peer-review and IME evidence together.
How do courts evaluate conflicts between treating physician opinions and peer review determinations?
B.Y., M.D. found no sufficient response in the available affirmation. Contrast the different opposing evidence in the linked Five Boro note.
Jason’s original 2010 note
Jason’s original 2010 reaction follows. His description of the decision as unusual reflects his experience then, not a claim that it created a new statewide burden.
This case is interesting, besides citing two of my Mercury cases, because I do not know of another case from the 9th and 10th judicial districts where reverse summary judgment on the issue of medical necessity was granted to the insurance carrier. Also, this case continues the trend where the courts have told the medical providers that they need to marshal medical evidence in order to defeat an insurance carrier’s summary judgment motion.
Connect to the Encyclopedia
Start with the medical necessity and peer-review encyclopedia, then compare these records:
- Innovative Chiropractic: different results for two claims
- Alur Medical: an unrebutted equipment review
- Five Boro: missing report pages and sufficient opposition
- Ocean Diagnostic: medical proof the insurer did not answer
For review of a particular no-fault dispute, contact the firm with the relevant reports and motion papers.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
171 published articles in Medical Necessity
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May 22, 2019Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What constitutes sufficient medical evidence to counter an insurance carrier’s medical necessity challenge?
The evidence must engage with the asserted medical reasons. B.Y., M.D. found the available opposition insufficient; it did not prescribe a universal checklist.
How has the Progressive decision changed settlement negotiations in medical necessity cases?
The opinion does not establish an effect on negotiations. Its holding concerns the motion record.
What documentation should healthcare providers maintain to avoid medical necessity disputes?
This ruling does not promise that particular records prevent disputes. It illustrates why the filed evidence must be complete and responsive.
Can peer review reports alone establish lack of medical necessity?
That broad question was not decided here: Progressive submitted peer-review and IME evidence together.
How do courts evaluate conflicts between treating physician opinions and peer review determinations?
B.Y., M.D. found no sufficient response in the available affirmation. Contrast the different opposing evidence in the linked Five Boro note.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
