Appellate Term First Department does not seem to be too fond of durable medical equipment

Understanding Medical Necessity in No-Fault DME Claims

New York’s no-fault insurance system requires insurers to provide prompt payment for medically necessary treatment arising from motor vehicle accidents, including durable medical equipment (DME). However, the question of what constitutes “medically necessary” DME—and how providers must prove that necessity—has become increasingly contested territory in no-fault litigation.

Under New York Insurance Law § 5102(a)(1), no-fault benefits cover “basic economic loss,” which includes necessary medical expenses. For DME providers, establishing medical necessity requires more than simply showing that equipment was prescribed and delivered. Providers bear the burden of demonstrating through competent medical evidence that the specific equipment was appropriate for treating injuries causally related to the covered accident.

The evidentiary standards for proving medical necessity in summary judgment motions have evolved through a series of Appellate Term decisions. Insurance carriers can establish their prima facie case through peer review reports or expert affidavits that identify specific deficiencies in the medical documentation supporting DME claims. Once the carrier meets this burden, the provider must respond with admissible medical evidence—properly sworn and sufficiently detailed—to raise triable issues of fact.

Procedural compliance becomes critical in these disputes. CPLR 2106 requires that affidavits be properly sworn before an authorized officer, while CPLR 2109 governs the execution of affidavits. Medical reports and certifications that fail to comply with these procedural requirements risk exclusion from consideration, potentially dooming a provider’s opposition to summary judgment. The intersection of substantive medical necessity standards and technical procedural requirements creates numerous pitfalls for DME providers seeking to recover assigned benefits.

Case Background: Triangle R Inc. v. New York Central Mutual

Triangle R Inc., a durable medical equipment supplier, brought an action to recover assigned first-party no-fault benefits from New York Central Mutual Fire Insurance Company for medical supplies provided to an injured motorist. The insurance carrier moved for summary judgment, arguing that the DME provider failed to establish that the supplied equipment was medically necessary.

The defendant insurer submitted evidence challenging the medical necessity of the equipment provided. In response, Triangle R relied on a medical report to demonstrate that the supplies were appropriate and necessary for treating the assignor’s accident-related injuries. However, the report contained significant deficiencies that proved fatal to the provider’s case.

The lower court granted summary judgment in favor of the insurance carrier. Triangle R appealed to the Appellate Term, First Department, challenging the determination that it failed to raise triable issues of fact regarding medical necessity. The appeal presented questions about both the sufficiency of the carrier’s prima facie showing and the adequacy of the provider’s responsive evidence.

The Court’s Decision

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51663(U)(App. Term 1st Dept. 2011)

“In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127, 2010 NY Slip Op 52267 ; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140, 2009 NY Slip Op 52447 ). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 ). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).”

It looks to me like the Appellate Term, First Department, is not too fond of durable medical equipment. Enko v. Clarendon and Triangle v. NYCM (Defendant is entitled to summary judgment based upon submissions) and A-plus v. Mercury and Pomona v. Geico (Defendants submissions fail to conclusively establish its prima facie entitlement to summary judgment)

Legal Significance of the Triangle R Decision

The Triangle R decision reflects a broader pattern in First Department jurisprudence applying heightened scrutiny to DME claims. By citing Enko Enterprises and Innovative Chiropractic, the court situated this decision within an emerging line of cases that impose strict evidentiary requirements on equipment providers seeking no-fault reimbursement.

The dual deficiencies identified by the court—procedural non-compliance and substantive insufficiency—illustrate the two-level analysis courts employ in reviewing DME claims. Even when providers submit medical evidence in opposition to summary judgment, that evidence must satisfy both the technical requirements of CPLR 2106 and 2109 regarding proper execution, and the substantive requirement of adequately addressing the medical necessity challenge raised by the carrier’s expert.

The court’s observation that the report was insufficient “even if considered” signals that procedural compliance alone cannot salvage substantively deficient medical evidence. This suggests that DME providers must ensure their responsive evidence specifically addresses causation, appropriateness of the equipment type, duration of need, and the relationship between the prescribed equipment and the documented accident-related injuries. Generic or conclusory medical statements, even if properly sworn, will not suffice to defeat summary judgment when the carrier has presented detailed expert analysis challenging medical necessity.

The pattern Jason Tenenbaum identified—comparing Triangle R and Enko (where defendants prevailed) with A-plus and Pomona (where defendants’ prima facie showings were found insufficient)—demonstrates that the First Department applies nuanced standards. Success for carriers depends on the specificity and quality of their medical necessity challenges, while providers’ survival of summary judgment requires both procedural precision and substantively responsive medical evidence.

Practical Implications for DME Providers

For durable medical equipment providers litigating no-fault claims, Triangle R offers critical lessons for opposing medical necessity challenges. First, procedural compliance is non-negotiable. Every medical report submitted in opposition to summary judgment must be properly sworn in accordance with CPLR 2106, must be dated, and must identify the affiant’s qualifications and basis for the opinions expressed. Using unsigned, undated, or improperly notarized medical documents invites exclusion and summary dismissal.

Second, providers should obtain detailed medical certifications that specifically address the challenged equipment. When carriers submit peer reviews questioning medical necessity, generic form letters from prescribing physicians will not suffice. The responsive evidence must explain why the particular DME items were appropriate for the documented injuries, how they facilitated recovery, and why alternative treatments or equipment would have been inadequate. Medical experts should review the carrier’s specific challenges and respond point-by-point to create genuine issues of material fact.

Third, providers should anticipate medical necessity challenges by maintaining robust documentation at the time equipment is prescribed and delivered. Contemporary medical records supporting the prescription, photographs documenting equipment delivery and patient use, and follow-up assessments showing the equipment’s therapeutic benefit all strengthen the provider’s position. Proactive documentation practices reduce vulnerability to retrospective challenges questioning whether the equipment was truly medically necessary.

Finally, DME providers should carefully evaluate the strength of their opposition evidence before incurring litigation costs in cases with weak medical support. The First Department’s pattern of strictly enforcing evidentiary standards in DME cases means that borderline claims lacking strong medical necessity evidence face significant dismissal risk. Strategic case evaluation and selective litigation of well-documented claims may prove more cost-effective than defending every denied claim through summary judgment motion practice.

Related Articles

• Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
• Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
• The CPLR 2106 Trap: Why Medical Practice Owners Must Avoid This Critical Procedural Error
• A prima facie case of medical necessity?
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2011 post, New York’s no-fault regulations have undergone multiple amendments affecting medical necessity standards and evidentiary requirements for durable medical equipment claims. The fee schedules, prior authorization procedures, and documentation requirements for DME providers have been substantially revised, and practitioners should verify current provisions under the updated regulations and recent appellate decisions.