Key Takeaway
Devonshire's 2011 peer-review ruling granted providers summary judgment. Separate its record-specific result from Jason's historical departmental comparison.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity 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 providers won in Devonshire Surgical Facility v American Transit, 2011 NY Slip Op 50513(U) because the insurer’s peer review did not raise a factual dispute. The motion belonged to the providers. Keeping that posture in view is more useful than treating the case as proof that one appellate department always favors one side.
Historical note: Devonshire (April 5, 2011) rejected a conclusory peer review in opposition to the providers’ motion; its result does not establish Jason’s department-wide frequency comparison as a rule for present cases.
Last reviewed: September 2026.
What the First Department’s Appellate Term decided
On April 5, 2011, the court reversed the denial of the providers’ motion and granted judgment to Devonshire Surgical Facility and Carnegie Hill Orthopedic Services. It assumed, without deciding, that the insurer’s denials were timely. The peer review still lacked enough supporting facts to defeat the providers’ showing.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
This was not a decision that a peer review established the insurer’s right to judgment but somehow could not create a factual dispute. The report was conclusory in the posture presented.
The cited comparison
East Coast Acupuncture v American Transit (2007) distinguished claims within one case: deficient peer-review proof did not defeat the provider’s showing on two claims, while a neurologist’s IME created a medical-necessity issue on another. That comparison points to the proof offered for each claim.
Jason’s three-option description below is preserved as historical commentary. The published Devonshire decision does not measure how often either department accepts reports, and this note should not be used to choose a venue based on an assumed preference.
Jason’s original comment
Jason’s April 2011 comparison follows unchanged. The frequency claims reflect his assessment then, not a finding in Devonshire or a current empirical comparison of appellate departments.
A peer review in the First Department presents three options: (1) Insufficient; (2) Sufficient to raise an issue of fact only; and (3) Sufficient to demonstrate lack of medical necessity prima facie.
In the Second Department, it is usually option (3) and rarely option (1). Never option (2)
Connect to the Encyclopedia
Start with the medical necessity and peer-review topic hub for the archive’s case directory. Compare these related records:
- Promed: two equipment claims, two different results
- Huntington Regional Chiropractic: medical affidavits answered two IMEs
- Hunt City: competing chiropractic opinions left a trial issue
- AP Diagnostic: the clinical reason for an MRI
For review of a particular no-fault dispute, contact the firm with the relevant reports, submissions and orders.
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
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
Keep Reading
More Medical Necessity Analysis
MUA is dangerous
Mollo's 2020 MUA ruling turned on competing expert testimony. Read the actual trial result without treating an expert's safety concerns as a universal rule.
Mar 17, 2021
Another Medical Necessity?
DRD Medical defeated the insurer's motion in 2020. Compare the court's finding of a factual dispute with Jason's original criticism of the affidavit.
Apr 27, 2020
Understanding New York No-Fault Insurance Medical Necessity: Why Surgery Peer Review Alone Is Not Enough
Learn why surgery peer review alone isnt enough for NY no-fault medical necessity denials. Expert legal analysis from experienced Long Island attorneys.
May 22, 2019
Lack of medical necessity defense upheld
Five Boro Medical: two claims dismissed on peer-review proof, a third surviving on denial timing, and the limits of an expert-qualification objection.
Jan 3, 2015
Date of IME is guidepost for mecical necessity determination
Court clarifies that IME reports cannot retroactively establish lack of medical necessity for treatments provided before the examination date.
Jul 17, 2012
A signifcant knee surgery does not defeat the 5102(d) serious injury threshold
Court rules knee surgery including ACL reconstruction doesn't meet NY serious injury threshold when medical records show full strength and range of motion post-surgery.
Jul 7, 2010Was this article helpful?
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 medical necessity 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.
