Key Takeaway
Eastern Star's 2010 ruling dismissed two no-fault claims after the provider failed to answer the IME. Compare the medical evidence and later case notes.
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.
Eastern Star Acupuncture lost the two claims on appeal because its opposition did not answer the insurer’s medical evidence. A medical professional’s signature was not enough.
What Eastern Star decided
The March 8, 2010 opinion, 2010 NY Slip Op 50380(U), concerned two claims that the Civil Court had left for trial. Mercury submitted an affidavit from the chiropractor/acupuncturist who performed the independent medical examination, together with an affirmed IME report. The Appellate Term, Second Department, found that evidence sufficient to establish lack of medical necessity for the services at issue.
The provider’s supervising acupuncturist did not meaningfully address the IME conclusions. The appellate court reversed the appealed portion of the order and granted dismissal of those claims. The opinion does not support saying that every claim in the action was dismissed or that the provider owed the insurer attorney’s fees.
Why the response failed
The court applied Pan Chiropractic v Mercury, 2009 NY Slip Op 51495(U). In Pan, the opposing affidavit simply disagreed with the reviewer without discussing the determination. Eastern Star applied that reasoning to an IME-based motion.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
Read the medical evidence before drafting the response. Identify the services disputed, the examiner’s reason for finding them unnecessary and the opposition’s response to that reason. Length does not cure a missing response to the examiner.
Compare Complete Radiology’s successful treating-physician letter. That result does not give treating doctors an automatic preference. Both decisions concern whether the particular papers created a factual dispute after the insurer made its initial showing.
These are summary-judgment decisions. They do not establish an affidavit word count, a same-specialty requirement for every dispute or a universal rule for arbitration.
Historical note: This 2010 ruling concerns inadequate opposition to an IME-based summary-judgment motion; Pan Chiropractic supplies the cited rebuttal analysis, while the medical-necessity hub separates proof of the defense from denial timing.
Last reviewed: September 2026.
Connect to the Encyclopedia
Start with the medical necessity and peer review hub.
- A treating-physician letter that raised a factual issue: Complete Radiology
- Missing justification for additional studies: Neomy
- Normal range of motion and an inadequate rebuttal: Mendoza
- Conflicting physical-therapy opinions: DRD Medical
For review of a particular no-fault dispute, contact the firm with the denial and supporting medical 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
Keep Reading
More Medical Necessity Analysis
MUA is dangerous
Mollo's 2020 MUA ruling turned on competing expert testimony. Read the actual trial result without treating an expert's safety concerns as a universal rule.
Mar 17, 2021
Another Medical Necessity?
DRD Medical defeated the insurer's motion in 2020. Compare the court's finding of a factual dispute with Jason's original criticism of the affidavit.
Apr 27, 2020
The first of hopefully many
Long Island personal injury law blog discusses landmark Bongiorno v State Farm decision, marking first Richmond County reversal on medical necessity.
May 8, 2009
Depositions of medical providers
Court rules on deposing medical providers in no-fault insurance cases when medical necessity is disputed, analyzing discovery rights under CPLR 3101(a).
Aug 10, 2015
Appellate Term Second Department expounds on sufficient medical rationale in DME case
Park Slope Medical rejected a nonresponsive DME rebuttal in 2013. The decision concerns the evidence for particular supplies, not a three-therapy limit.
May 16, 2013
More plaintiffs fail to rebut an insurance carrier’s medical utilization report
Three recent no-fault insurance cases demonstrate how plaintiffs consistently fail to provide adequate medical expert testimony to rebut insurance carriers' utilization reports.
Nov 27, 2010Frequently 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 did the court rule in Eastern Star Acupuncture v Mercury Insurance?
The Appellate Term reversed the appealed portion of the order and dismissed the two claims at issue. Mercury's IME evidence established lack of medical necessity, and the supervising acupuncturist's affirmation did not meaningfully address it.
Why do conclusory affidavits fail in medical necessity summary judgment motions?
In Eastern Star and Pan Chiropractic, the opposition failed to engage the insurer's medical reasoning. A statement of disagreement did not create a factual dispute after the insurer made its initial showing.
What is a medical necessity summary judgment motion in New York no-fault cases?
It asks a court to decide the disputed claims without trial based on the submitted evidence. Eastern Star concerned an insurer's motion directed to particular treatment claims, not a determination of every possible coverage issue.
How can medical providers on Long Island defeat summary judgment on medical necessity?
Compare the examiner's findings with the opposing medical evidence. Complete Radiology shows that a treating-physician letter can raise a factual dispute; Eastern Star shows that the professional's title alone does not answer the report.
What happens if a medical provider loses a summary judgment motion?
The claims covered by the judgment may be dismissed. Eastern Star dismissed the two claims on appeal without costs; it did not establish an automatic obligation to pay the insurer's attorney's fees.
Was this article helpful?
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.
