Key Takeaway
Jason Tenenbaum successfully defeats plaintiff's medical necessity opposition with verbose but inadequate affidavit in Prime Psychological Services case.
When Verbose Affidavits Fall Short in Medical Necessity Cases
In New York’s no-fault insurance system, healthcare providers frequently challenge insurance companies’ denials of medical necessity through summary judgment motions. The quality of opposition papers can make or break these cases. Even lengthy, detailed affidavits may fail to meet the legal standard if they don’t properly address the core issues raised by peer review reports.
This case demonstrates a common scenario where a plaintiff’s medical expert provided what appeared to be substantial opposition but ultimately failed to create the triable issue of fact needed to survive summary judgment. The court’s analysis reveals why length and detail alone cannot substitute for legally sufficient rebuttal evidence.
Understanding the standards for opposing medical necessity determinations is crucial for practitioners in New York no-fault insurance law, particularly when dealing with peer review challenges.
Jason Tenenbaum’s Analysis:
Another Plaintiff failed to raise a triable issue of fact against a medical necessity summary judgment motion. This affidavit, if memory served me correct, was quite verbose. It was close to the minimal threshold needed to raise an issue of fact (See, Infinity v. Mercury and Coop City Chiro v. Mercury), but did not cut the mustard as they say. Oh by the way – I was the Respondent here, not the Appellant as is usually the case.
Prime Psychological Servs., P.C. v Mercury Ins. Group, 2010 NY Slip Op 50585(U)(App. Term 2d Dept. 2010)
“In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137, 2009 NY Slip Op 52321 ). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted”
Key Takeaway
Medical expert affidavits must do more than provide general support for treatment necessity. They must specifically address and meaningfully rebut the conclusions in peer review reports. Verbose submissions that fail to engage with the actual peer review findings will not survive summary judgment, regardless of their length or apparent thoroughness.
Legal Update (February 2026): Since this 2010 post, New York’s no-fault insurance regulations have undergone multiple revisions, including amendments to medical necessity standards, peer review procedures, and affidavit requirements under 11 NYCRR Part 65. Practitioners should verify current regulatory provisions and recent case law developments regarding the sufficiency standards for opposing medical necessity determinations in summary judgment proceedings.
