Key Takeaway
Appellate Term ruling on medical necessity motions in no-fault insurance cases, examining hearsay rules and evidence standards for Nassau County plaintiff firms.
This article is part of our ongoing evidence coverage, with 278 published articles analyzing evidence 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, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)(App. Term 2d Dept. 2010)
I guess the luck of certain Nassau plaintiff firms (9th and 10th judicial districts) who received favorable decisions on medical necessity motions, while their counterparts in the other Second Department lower courts (2nd, 11th & 13th judicial districts) did not fare as well, were handed a glaring set back in the latest round of decisions.
To put it bluntly, the Appellate Term has held that these firms’ papers and arguments in attempting to defeat a marginally supported lack of medical necessity motion will always lose. While the Nassau judges, in several well though-out published decisions found otherwise, the Appellate Term for the 9th and 10th Judicial Districts has now conformed their holdings on this issue to that of their New York City counterparts.
While I have reservations about the Appellate Term’s holding that the failure to annex documents that a peer review doctor relied upon is proper, what is interesting is that this court adopted the Urban Radiology holding verbatim. As it related to the “non-hearsay rule” of plaintiff’s documents, this decision was correct in light of the Fourth Departments holding in Matter of State of New York v Wilkes, 2010 NY Slip Op 07006 (4th Dept 2010). As those who read this blog regularly will know, I discussed the Wilkes case and predicted that it would solidify the non-hearsay rule enunciated in the Urban court and now followed by the Elmont court. I have always said to watch the Fourth Department when they dump about 100 cases online once each month.
Here is my favorite line from this Court: “defendant was not required to consider plaintiff’s bills in a vacuum and to ignore medical records which defendant had received either from plaintiff’s assignor or from another provider who had submitted such records on behalf of the assignor”
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- The Future is Bright for Medical Necessity Summary Judgment Motions in New York
Legal Update (February 2026): Since this 2010 decision, New York’s no-fault insurance regulations have undergone significant revisions, including amendments to medical necessity determination procedures and peer review standards. Additionally, appellate courts have issued numerous decisions that may have refined or modified the evidentiary standards and hearsay rules discussed in this post. Practitioners should verify current regulatory provisions and recent case law developments when evaluating medical necessity challenges and opposition strategies.
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
Evidentiary Issues in New York Litigation
The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.
278 published articles in Evidence
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Feb 3, 2012Common Questions
Frequently Asked Questions
What types of evidence are important in no-fault and personal injury cases?
Key types of evidence include medical records and bills, police accident reports, diagnostic imaging (MRI, X-ray, CT scans), expert medical opinions, business records from insurance companies and providers, witness statements, photographs of injuries and the accident scene, and employment records for lost wage claims. The rules of evidence under New York CPLR and the Evidence Rules govern what is admissible in court proceedings.
What is the business records exception to hearsay in New York?
Under CPLR 4518(a), a business record is admissible if it was made in the regular course of business, it was the regular course of business to make such a record, and the record was made at or near the time of the event recorded. This exception is crucial in no-fault litigation because insurers' denial letters, claim logs, and peer review reports are often offered as business records. The foundation for the business record must be established through testimony or a certification.
What role does diagnostic imaging play as evidence in injury cases?
Diagnostic imaging — MRIs, CT scans, X-rays, and EMG/NCV studies — provides objective evidence of injuries such as herniated discs, fractures, ligament tears, and nerve damage. Courts and arbitrators give significant weight to imaging evidence because it is less subjective than physical examination findings. In serious injury threshold cases under §5102(d), imaging evidence corroborating clinical findings strengthens the plaintiff's case considerably.
How do New York courts handle surveillance evidence in personal injury cases?
Insurance companies frequently hire investigators to conduct video surveillance of plaintiffs to challenge injury claims. Under CPLR 3101(i), a party must disclose surveillance materials prior to trial, including films, photographs, and videotapes. Surveillance evidence can be powerful for impeachment if it contradicts the plaintiff's testimony about limitations. However, courts may preclude surveillance that was not properly disclosed or that is misleadingly edited.
What is hearsay and why does it matter in New York litigation?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible under New York evidence rules. In no-fault and personal injury cases, hearsay issues frequently arise with medical records, peer review reports, denial letters, and witness statements. Key exceptions include the business records rule (CPLR 4518), party admissions, excited utterances, and statements made for medical diagnosis or treatment. Understanding hearsay rules is essential because improperly admitted or excluded evidence can change the outcome of a case.
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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.
If you need legal help with a evidence 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.