A triable issue of fact

A denial issued after additional verification can defeat a provider’s motion without deciding whether the treatment was medically necessary. That was the procedural point in New York University Hospital-Tisch Institute v GEICO, decided May 28, 2014. The insurer showed that its denial followed the last verification response by 29 days. The Appellate Division, Second Department, held that a factual issue remained about timely denial.

Historical note: NYU Hospital-Tisch denied the provider summary judgment on one cause of action; it did not award judgment to the insurer on medical necessity. Viviane Etienne later confirmed the provider’s initial proof requirements for overdue benefits. The report-release obligation remains stated in 11 NYCRR 65-3.8(b)(4).

Last reviewed: September 2026.

The appeal concerned one claim, not the entire action

The action sought no-fault benefits under two insurance contracts. Only the first cause of action was before the appellate court. Supreme Court initially denied the providers’ request for summary judgment on that cause of action, then granted it after reargument.

On reargument, the court treated the insurer’s peer-review report as defective under the then-applicable affirmation requirements of CPLR 2106. It concluded that without that report or other medical evidence, GEICO had not raised a triable issue.

The Appellate Division reversed that part of the reargument order and restored the original denial of the providers’ motion. This was not an order granting GEICO summary judgment. It left the disputed claim to be resolved through the remaining proceedings.

The dates that mattered

The insurer’s evidence placed receipt of the final additional-verification response on December 21, 2010. Its denial was dated January 19, 2011, 29 days later. The court treated that evidence as raising a factual issue about whether the denial fell within the payment period after the verification toll.

A timeline beginning only with the original hospital bill would miss that issue. A timeline ending when the insurer sent its first request would also be incomplete. The analysis requires the claim form, the requests, the responses and the denial, with evidence of the relevant mailing and receipt events.

The decision describes the denial’s date and the evidence before the court. A present-day file still needs proof supporting the transmission and timing of its own denial. Printing a favorable date on a form is not a substitute for establishing what happened to that claim.

Why the missing medical rationale did not settle the motion

The court held that GEICO did not have to include the medical rationale in the denial form itself. It also held that, absent a written request, GEICO did not have to furnish the peer-review report to defeat this motion on the theory presented.

That distinction survives a close reading of 11 NYCRR 65-3.8(b)(4). When a medical examination or peer-review report is the specific basis for denial, the insurer must release a copy upon written request by the applicant, the applicant’s attorney or the treating physician. The regulation does not say that every report must accompany every denial without a request.

Report disclosure and proof of a medical-necessity defense are separate questions. This decision does not make a medical opinion admissible merely because the denial was timely. Nor does it establish that a written request for the report automatically wins the provider’s lawsuit. The issues raised on the motion and the parties’ respective burdens still matter.

What the later Viviane Etienne decision adds

In 2015, the Court of Appeals held in Viviane Etienne Medical Care v Country-Wide that a provider seeking summary judgment for overdue benefits must submit admissible evidence that its statutory claim forms were mailed to and received by the insurer and that payment was overdue. The mailing proof must satisfy applicable evidentiary requirements; the provider’s initial burden was not abolished.

That later decision gives a clearer reference point for Jason’s original discussion of Mary Immaculate, Viviane and the relationship between motions and trial. His questions below are contemporaneous litigation commentary, not a promise that a provider can obtain at trial whatever it failed to establish on a motion.

Separate the questions before preparing the papers

Start with what the provider is asking the court to decide. Is the motion based on an overdue claim? Does it attack the legal sufficiency of a timely denial? Does it seek a determination of medical necessity? Those are not interchangeable motions.

Next, identify the insurer’s answer. An affidavit establishing a verification response date may create a timing dispute without providing a medical explanation. A peer-review report may address treatment but leave a mailing defect unresolved. The evidence should answer the actual ground of the motion.

Finally, keep any written request for the peer-review or IME report and the response to it. That correspondence is relevant to the disclosure obligation discussed here. Do not infer from its absence that a report was requested, withheld or properly supplied.

The archive’s verification trial note explains what happens when a court narrows issues for trial. The verification affidavits note illustrates a factual dispute about delivery. Read together, they show why a denied motion is not the same thing as a final decision on the bill.

Jason’s original commentary

The original comments below are retained as historical commentary. The case-specific corrections and later developments are explained above.

So, can Plaintiff move for summary judgment putting in proof that it sought a peer report, thereby forcing Defendant to include its peer report or IME report (in admissible form) to raise an issue of fact?  This is  another example of this Court wholly moving away from Mary Immaculate, where an insurance carrier had to substantiate its denial, against an overdue bill, to defeat summary judgment.  Now, a medical provider would have to move affirmatively against the basis of the denial to force the insurance carrier to substantiate its denial on summary judgment.

But, with “3212” and Viviane, you can accomplish at “trial” with great ease what you could not accomplish at the summary disposition phase.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• E4 Services: denying receipt of the insurer’s requests.
• Island Life: proof at a limited verification trial.
• Bronx Acupuncture: By Report documentation.
• Mount Sinai: the NF-5 after a defective UB-04.
• Great Health Care: evidence that verification was mailed.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.