Key Takeaway
Court analysis of Anti-Fair Price regulation's impact on no-fault insurance defenses and preclusion rules in New York personal injury cases.
This article is part of our ongoing fraud coverage, with 8 published articles analyzing fraud 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.
Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co., 2014 NY Slip Op 51233(U)(App. Term 2d Dept, 2014)
“While defendant sought summary judgment on the grounds that plaintiff’s assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.”
“We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations § 65-3.8 ). ”
The Court again cites Westchester Lincoln and gives a cf to Unitrin. This point is old but I felt like putting it out there anyway because this is my blog and you are choosing to read it. The Court appears to cite the new anti preclusion regulation as a “defense that..would not be subject to preclusion”. Three points here.
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Point I: I was unsure if the Courts would hold that the new regulations could reverse preclusion, but I reread Presbyterian and “re-realized” that preclusion (according to the court) was supported through a dichotomy in the regulations. (Former 65.15(g)(3) v. 65.15(g)(5 and “The interpretive canon of inclusio unius, exclusio alterius “) So, Point I, i.e., can the DFS wipe out preclusion? Answer : yes.
Point II: The failure to provide services is being categorized as a defense. Certain defense attorneys have stated that the wording of the regulation suggests, e.g., billing in accordance with the fee schedule is part of a prima facie case based upon the textual layout of the amendment to the regulations. I never bought into that argument, and I am glad I did not. These preclusion carve outs are being classified as defenses.
Point III: I still think a medical provider should have to prove causation, proper billing and medical necessity. Furthermore, should the proposed attorney fee regulation pass, then the applicants cannot say that they are not being paid enough to prove the same elements that would need to be proven in a tort case.
Related Articles
- Understanding the 30-day payment rule in no-fault insurance fraud recovery
- How fraudulent procurement defenses can be precluded
- When counterclaims based on precludable fraud are rebuffed
- Cases where fraudulent procurement defense was precluded
Legal Update (February 2026): Since this post’s publication in 2014, Insurance Department Regulation § 65-3.8 and related no-fault regulatory provisions have undergone multiple amendments and revisions. The anti-preclusion framework and fee schedule regulations referenced in this analysis may have been substantially modified, and practitioners should verify current regulatory language and recent judicial interpretations of these evolving standards.
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.
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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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