Is the Appellate Term Really "Defendant Friendly"? Reflections on Losing No-Fault Appeals

Key Takeaways

• The Appellate Term, Second Department — the busiest appellate forum for New York no-fault litigation — is widely labeled “defendant friendly,” but a .5-for-3 day on the defense side says otherwise.
• Appellate outcomes turn on case-specific records: the affidavits, the mailing proof, the framing of the issues below — not on systematic judicial bias.
• Losses are data. Reading why an argument failed is often more instructive than a string of wins built on weak opposition.
• Practitioners on both sides should build their summary judgment records as if the court owes them nothing — because it doesn’t.

Even the most experienced attorneys face days when appellate court decisions don’t go their way. The legal profession is built on advocacy, thorough preparation, and sound legal arguments — but ultimately, success depends on how judges interpret the law and apply it to specific facts. This reality is particularly evident in New York no-fault insurance law, where practitioners regularly deal with appellate decisions that can significantly impact their clients’ cases.

The Appellate Term, Second Department regularly issues decisions that shape no-fault insurance practice throughout New York. These rulings address everything from examination under oath requirements to causation standards in personal injury cases, making each decision potentially significant for practitioners in this field.

The Original Post

Jason Tenenbaum’s Analysis:

This was just a thought as I read through the Appellate Term, Second Department, decisions that came out today. I will confess that I was .5 for 3 in today’s appellate decisions, which should be some proof that this court is not as “defendant friendly” as too many practitioners urge the bar to believe. I also am not ashamed to admit that sometimes, the chips do not stack up in your favor, even though you deep down believe they should.

That being said, the question is what happened? I will try to give some insight in some of the subsequent posts that I will be posting today, August 19, 2010.

-JT

The Appellate Term’s Place in No-Fault Litigation

For readers outside the no-fault world, some context. The overwhelming majority of first-party no-fault suits in the New York City metropolitan area are brought in the Civil Court of the City of New York and the District Courts of Nassau and Suffolk Counties. Appeals from those courts go to the Appellate Term — for the Second Department, the Appellate Term for the 2d, 11th and 13th Judicial Districts and for the 9th and 10th Judicial Districts.

Because tens of thousands of provider-versus-carrier suits move through those trial courts, the Appellate Term has effectively become the common-law engine of no-fault doctrine. Mailing presumptions, the elements of a prima facie case, IME and EUO no-show proof, verification abeyance — most of the operative rules were hammered out in short Appellate Term memoranda before the Appellate Division ever weighed in.

That volume is also why practitioners develop strong opinions about the court’s leanings. When you read every decision the court hands down — as this blog has done for years — patterns feel visible. But patterns in outcomes usually trace back to patterns in records.

Is Any Court Really “Defendant Friendly”?

The defense bar’s wins at the Appellate Term in that era were real, but they were mostly wins on proof discipline, not judicial favor. Carriers that invested in affidavit practice — claims examiners who could recite mailing procedures, doctors who could attest to no-shows from personal knowledge — won motions. Plaintiffs’ firms that mass-produced oppositions without engaging the record lost them.

Flip the record quality and the outcomes flip with it. A provider with a clean proof of mailing for its bills and a carrier with a defective denial will win, and the same “defendant friendly” court will affirm. A .5-for-3 day on the defense side is exactly what you would expect from a court deciding each appeal on its own record.

The honest conclusion: the court is record friendly. Whichever side shows up with admissible, well-organized proof tends to leave with the decision.

What Losing Appeals Teach

There is a reason this post promised follow-up analysis of the day’s losses rather than quietly ignoring them. Unfavorable decisions are the most useful reading in an appellate advocate’s diet:

• They expose the gap between what you believed your record showed and what a cold bench saw in it.
• They reveal where a doctrine is drifting before the drift becomes a holding.
• They discipline case selection — knowing which records cannot be saved on appeal is as valuable as knowing which arguments win.

Candor about losses also serves clients. A lawyer who tracks his own appellate batting average — and publishes it — is giving clients a more honest picture of litigation risk than one who only recounts victories.

Practice Pointers

• Build the record below as the appeal you may have to argue. The Appellate Term decides on the motion papers; there is no fixing a thin affidavit later.
• Read full decision lists, not just your own cases. The Appellate Term’s weekly output is a running seminar in what proof survives scrutiny.
• Discount “friendly court” folklore. Plan every motion as if the bench is skeptical of your side — because on any given day, it will be.

Frequently Asked Questions

What is the Appellate Term in New York?

The Appellate Term is an intermediate appellate court in the First and Second Departments that hears appeals from the New York City Civil Court and the District and County Courts. Because most no-fault suits start in those courts, the Appellate Term decides the bulk of New York’s no-fault appeals.

Why do so many no-fault decisions come from the Appellate Term, Second Department?

The Second Department’s territory covers Brooklyn, Queens, Staten Island, and Long Island — where the highest volume of no-fault billing litigation is filed. High case volume produces a steady stream of appeals and, with them, most of the doctrine governing no-fault proof.

Does losing an appeal mean the lawyer made a mistake?

Not necessarily. Appellate outcomes depend on the record made in the trial court, the state of the case law, and how a particular panel weighs both. Skilled advocates lose appeals; what matters is extracting the lesson and adjusting the proof in the next case.

Related Resources

• A formulation of a prima facie case — the firm’s cluster hub on prima facie proof in no-fault litigation
• New York No-Fault Insurance Law
• Causation standards and pre-existing conditions
• Browse the firm’s Legal Encyclopedia for more on no-fault doctrine
• No-Fault Defense practice page

Legal Update (February 2026): Since this 2010 post, New York no-fault insurance law has undergone significant regulatory changes, including updates to fee schedules, examination under oath procedures, and appellate practice standards. Practitioners should verify current Appellate Term decisions and regulatory amendments when reviewing causation standards and procedural requirements discussed in this analysis.