Appellate Term Aligns Medical Necessity Evidence Standards Across New York No-Fault Districts

Elmont Open MRI turned on what the peer reviewer was doing with the medical records. The court treated assumed facts used to evaluate necessity differently from records offered to prove those facts.

Historical note: Elmont Open MRI (December 16, 2010) explains the purpose for which the reviewer used treatment records; it does not make every plaintiff-sourced record non-hearsay for every purpose.

Last reviewed: September 2026.

Records assumed true, not proved true

On December 16, 2010, the Second Department’s Appellate Term granted the insurer summary judgment. Its office-practice evidence established timely denials, and its affirmed peer review established the defense on this motion.

The reviewer assumed the recorded facts were true and concluded that the billed services were unnecessary on those facts. The court distinguished using records to prove that an injury occurred. It also rejected this provider’s asserted need for further records and declined the insurer’s request for sanctions. Read Elmont’s full explanation.

The records’ origin alone did not settle the hearsay question. Jason’s district-wide reaction below is his December 2010 assessment, not a universal evidentiary rule.

Jason’s original comment

These are Jason’s three December 2010 comments, kept in their original order. His prediction that certain arguments would always lose, his district-wide assessment and his Wilkes comparison are commentary, not the wording or full reach of Elmont’s holding.

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 thought-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 Department’s 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”

Connect to the Encyclopedia

• Medical necessity: case directory and related decisions
• All Boro: a rebuttal that addressed another case
• Healing Art: medical necessity was outside the moving papers’ issues
• Promed Orthocare: substitute testimony and a preserved objection
• Dayan: a new trial under the correct burden of proof

For review of a particular no-fault dispute, contact the firm with the denial, relevant records and procedural history.