Defendant failed to meet its prima facie burden on a medical necessity motion

In Amherst Medical Supply v New York Central Mutual, saying the medical file lacked useful information was not enough. The peer reviewer did not identify what was missing or explain the medical rationale. On April 16, 2013, the Appellate Term, First Department affirmed the denial of the insurer’s motion insofar as appealed.

Historical note: Amherst (2013) rejected an unexplained missing-information assertion and separately found a factual dispute in the treating chiropractor’s affidavit; it did not import the serious-injury threshold into every no-fault medical-necessity claim.

Last reviewed: September 2026.

Both sides’ medical proof mattered

The insurer failed to eliminate the factual dispute with its peer report and accompanying chiropractor’s affidavit. The court also explained that the treating chiropractor identified the patient’s conditions and the intended benefit of each prescribed supply. That affidavit raised a factual issue independently of the insurer’s deficient showing.

The decision did not award the provider final judgment or declare all prescribed equipment necessary. It left the disputed medical-necessity issue unresolved on this motion.

Jason questioned the court’s citation to Lee v McQueens and drew an analogy to serious-injury litigation. Amherst cited Lee generally for the sufficiency of the medical proof. It did not announce a new § 5102(d) threshold for these reimbursement claims.

Jason’s original comment

Jason’s April 2013 discussion follows unchanged. His verification concern and serious-injury analogy are commentary. Amherst cited Lee generally for the sufficiency of medical evidence, without applying Insurance Law § 5102(d) as a new test for DME reimbursement.

I guess if you are going to make the assertion that a file is missing something, explain what it is.  Yet, if the file was missing something, then Plaintiff would state that this is really a verification issue; unless, what was missing was a finding on a particular report that would necessitate, in the reviewers’ opinion, the utility of a supply or particular DME.

The Court later went on to state that the Plaintiff raised an issue of fact through the affidavit of its chiropractor, and cited the Second Department case of “Lee v McQueens, 60 AD3d 914 ”

This is what Lee says: “In any event, the affidavits prepared by the plaintiffs’ treating chiropractors were sufficient to raise a triable issue of fact. The chiropractor averred that, through the use of a goniometer, he found limitations in the plaintiffs’ cervical and lumbar spines, both on his contemporaneous and most recent examination of the plaintiffs, which he quantified in his affidavits”

Hard to make heads or tales of the citation except it should lead the reader to believe that this Court is looking at medical necessity case, in part, through a 5102(d) prism.

As a footnote, I would like to see more medical appropriateness cases viewed by this Court.  This Court gives an analysis of the medical records that gives practitioners and triers of fact something to work with when citing a case.

Connect to the Encyclopedia

• Medical necessity and peer review: topic hub
• Park Slope: a rebuttal that missed the peer review’s reasoning
• Triangle R: defective DME opposition
• Innovative MR Imaging: unsigned and unsworn opposition
• A Plus Medical: an insurer’s insufficient summary-judgment showing

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