Key Takeaway
Selective's insurer submitted the deficient affidavit; the hospital won. A corrected account of the 2007 no-fault causation and payment ruling.
This article is part of our ongoing causation coverage, with 346 published articles analyzing causation 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.
The hospital won in New York and Presbyterian Hospital v Selective. The deficient medical affidavit belonged to the insurer opposing payment, not to the hospital.
Last reviewed: September 2026.
Historical note: This 2007 no-fault payment ruling concerns an insurer’s deficient opposition; Insurance Law 5106(a) supplies the overdue-benefits framework, not the tort serious-injury threshold.
Whose affidavit failed
In New York & Presbyterian Hospital v Selective Insurance Co. of America, 43 AD3d 1019 (2d Dept 2007), decided September 18, 2007, the Second Department affirmed the hospital’s judgment. The trial court had granted the hospital’s summary-judgment motion and denied the insurer’s cross-motion to dismiss.
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The hospital showed that the prescribed billing form had been mailed and received and that payment was overdue. The insurer then failed to support its contention that the treated condition was unrelated to the accident. Its expert affidavit was conclusory, speculative and unsupported. The court therefore left the hospital’s judgment in place.
The hospital was seeking payment on its own motion. The insurer needed evidence supporting its opposition.
Keep the benefit claim separate
Insurance Law 5102(b) defines first-party benefits; section 5106(a) addresses overdue payment after proof of loss. The decision’s timing discussion also accounts for requested verification. It should not be reduced to a promise that every bill is payable thirty days after arrival regardless of the claim record.
The disputed affidavit concerned a causation defense to those benefits. It was not proof of the tort serious-injury threshold. The CPLR 3212(b) motion record and the particular claim determine who must make which showing.
Jason’s original comment
Jason’s original 2011 note on the 2007 decision follows. The affidavit he describes was the insurer’s, and the hospital prevailed.
Affidavit insufficient to raise a triable issue of fact as to lack of causation relationship between injury and loss.
Connect to the Encyclopedia
See the pre-existing injury and causation encyclopedia hub for the topic’s case directory and statutory update.
- Shur: a contradictory IME report and two unsuccessful motions
- McDonald: speculative causal proof after a jury verdict
- Vargas: before-and-after knee MRIs and a triable causal issue
- Russell: unchanged prior findings and unsupported aggravation
For review of a particular injury or no-fault dispute, contact the office.
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
Causation in New York Personal Injury & No-Fault Law
Causation — proving that the defendant's negligence or the accident caused the plaintiff's injuries — is an essential element of every personal injury and no-fault claim. New York courts distinguish between proximate cause, intervening causes, and pre-existing conditions that may have been aggravated by an accident. The legal standards for establishing causation through medical evidence and the defenses available to challenge causal connection are analyzed in depth across these articles.
346 published articles in Causation
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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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