Key Takeaway
Analysis of Active Imaging v Progressive case where Appellate Term rejected challenge to medical necessity motion based on peer report without underlying medical records.
Active Imaging, P.C. v Progressive Northeastern Ins. Co, 2010 NY Slip Op 51842(U)(App. Term 2d Dept. 2010)
The Appellate Term, Second Department rejected a plaintiff’s challenge to a lack of medical necessity motion, based upon a peer report – without the medicals that were relied upon – because “these reports and records are not part of defendant’s prima facie showing.”
As a fail safe, the court said that: “pursuant to CPLR 3212 (f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if facts essential to justify opposition may exist but cannot then be stated.”
I hate to say this, and I feel some defense guys probably will not be happy with what I am going to say, but I will say it anyway, because this is is my blog and I try to do the right thing. I think this decision is wrong. An opinion based upon medical records (whether hearsay or not hearsay) should contain the relied upon medical records. The Second Department said this in a case you can find on this blog.
Now, I do not feel the same way about IME cut off cases, because unlike Judge Hirsch, I believe that a finding of lack of disability or something that implies (but does not say) “medical maximum improvement” prima facie establishes a lack of medical necessity for post IME services, supplies, etc. Thus, the lack of inclusion of medical records on an IME cut-off case, generally, should not impact an insurance carrier’s prima facie entitlement to summary judgment.
I believe the Appellate Division may grant leave on this case, for the simple reason that a decision like this could be disastrous in medical malpractice and bodily injury litigation, under the right fact scenario.
Finally, the “3212(f)” remedy is a cop out in my mind, and probably an admission this decision does not rest on solid footing. My advice to the plaintiff’s bar is to be careful before you file Notices of Trial in the Second Department.
So yes, this blog is fair and balanced, at least in my mind.
Related Articles
- Civil Court’s flawed reasoning in no-fault insurance evidence disputes
- How medical experts establish competency to testify on standard of care
- Peer doctor testimony establishing prima facie lack of medical necessity
- Expert affirmations sufficient to defeat summary judgment in malpractice cases
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2010 decision, New York’s no-fault regulations and court precedents regarding peer review documentation requirements may have evolved, particularly concerning what constitutes adequate prima facie showing for medical necessity denials. Practitioners should verify current procedural requirements under Insurance Law Article 51 and recent Appellate Division rulings regarding the sufficiency of peer review reports and supporting documentation.
