Key Takeaway
Learn how summary judgment motions in no-fault insurance cases can backfire on carriers when discovery rules work against them in medical necessity disputes.
This article is part of our ongoing mailing coverage, with 286 published articles analyzing mailing 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.
Elmont Open MRI & Diagnostic Radiology, PC v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 51588(U)(Dis. Ct. Nassau Co. 2010)
I would put this case in the “be careful what you ask for” category, because the insurance carrier got what it sought. To briefly explain, the insurance carrier filed a summary judgment motion based upon the services lacking medical reasonableness in accordance with a peer review. Plaintiff put in answering papers, bereft of an affidavit of merit.
District court ruled that the denial was timely mailed, but the submissions in support of the summary judgment motion were insufficient to prima facie establish a lack of medical necessity. I will get to this point later.
Somebody filed a notice of trial, a demand for a trial de novo was somewhere filed, and now this matter is on for trial. The insurance carrier seeks to have Plaintiff prove it mailed the claim forms, and to have Plaintiff lay a business record foundation for the admission of the bills into evidence.
At trial, District Court properly forced Plaintiff to lay a business record foundation for the admission of the claim forms into evidence, since Plaintiff never previously cross-moved for partial summary judgment and this issue was never adjudicated. The District Court, however, properly found that the insurance carrier’s summary judgment motion rendered the mailing issue moot. The fact is a summary judgment motion is the functional equivalent of a trial. If an affidavit states a bill was received and was denied, then it is impossible for an insurance carrier to escape that element of a plaintiff’s prima facie case during a later proceeding, i.e., the trial.
But this brings me to the title of my post. In a medical necessity case, an insurance carrier’s properly supported motion for summary judgment, includes the following: the denials, the affidavit of the claims representative indicating proof of receipt of the bill, the mailing of the denial, the IME or peer report and the underlying medical records. This documentary evidence affords the medical provider or injured person all the discovery they need to proceed to trial, provided the summary judgment motion is properly defeated. Furthermore, as seen above, this documentary evidence serves the exact function of verified interrogatories or an unanswered or admitted to Notice to Admit: admission of receipt of the bill and that the claim is overdue.
This now bring me to my last point. Were the MRI’s referred and prescribed by the chiropractor? If they were, then the case law seems to be that the medical reasonableness is determined through the shoes of the referring expert. I discussed this issue in previous posts. The point being that upholding the medical necessity based solely on Dr. Liguori’s medical records seems to be improper and an end around the chiropractor’s referral for the testing. Also, were the reviewed documents provided for in the summary judgment motion? If they were, then summary judgment should have been granted provided: the standard factual basis and medical rationale test was met and the said documents did not negate the peer review, i.e., Hillcrest MRI.
Perhaps this case should be appealed on the latter points?
Related Articles
- Understanding prima facie medical necessity requirements
- Peer review report challenges in Elmont Open MRI cases
- Why conclusory affidavits fail in medical necessity summary judgment motions
- First Department’s medical necessity ruling favoring insurance carriers
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2010 decision, New York’s no-fault regulations have undergone multiple amendments affecting summary judgment standards, medical necessity review procedures, and evidentiary requirements for business records in insurance disputes. Practitioners should verify current provisions of 11 NYCRR Part 65 and recent appellate decisions interpreting summary judgment motions in no-fault cases, as procedural and substantive standards may have evolved significantly.
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
Proof of Mailing in New York No-Fault Practice
Proof of mailing is a foundational issue in no-fault litigation. Insurers must prove timely mailing of denial forms, verification requests, and EUO scheduling letters, while providers and claimants must prove timely submission of claim forms and bills. Establishing a standard office mailing procedure through business records — and the presumption of receipt that follows — is heavily litigated. These articles examine the evidentiary standards for proving and challenging mailing in New York no-fault cases.
286 published articles in Mailing
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Jul 21, 2015Common Questions
Frequently Asked Questions
Why is proof of mailing important in no-fault litigation?
Proof of mailing is critical in no-fault cases because many defenses depend on whether documents were properly sent — including denial letters, EUO scheduling notices, IME appointment letters, and verification requests. To establish proof of mailing, the insurer typically must show standard office mailing procedures through affidavit testimony and documentary evidence such as mailing logs or certified mail receipts. A failure to prove proper mailing can be fatal to the insurer's defense.
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
Can an insurer cut off no-fault benefits based on one IME?
Yes, an insurer can discontinue benefits after a single IME doctor concludes that further treatment is not medically necessary or that the claimant has reached maximum medical improvement. However, the IME report must be sufficiently detailed and the denial must be issued within 30 days under 11 NYCRR §65-3.8(c). The treating physician can submit a rebuttal affirmation explaining why continued treatment is necessary, forming the basis for challenging the cut-off at arbitration.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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.
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