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The Appellate Term’s decision in Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. delivers another victory for healthcare providers in no-fault litigation, reinforcing the strict procedural requirements insurers must follow when raising fraud defenses. This case exemplifies how courts continue to apply the pivotal Triangle R decision, which established that insurers cannot pursue certain defenses unless they properly preserve them through timely denials.
The ruling underscores a fundamental principle in New York’s no-fault system: insurers who fail to deny claims within the statutory timeframe forfeit their right to challenge those claims on substantive grounds later in litigation. This procedural safeguard prevents insurers from accepting the benefits of delayed decision-making while still maintaining their defensive options. The fee schedule defense is among those that must be raised in the initial denial — it cannot be resurrected at deposition stage.
Jason Tenenbaum’s Analysis:
Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co., 2014 NY Slip Op 51290(U)(App. Term 1st Dept. 2014)
“The defendant-insurer failed to demonstrate entitlement to depositions relating to its excessive treatment and fee schedule defenses, in the absence of any affirmative showing that it preserved those defenses by timely denying plaintiff’s 2006 first-party no-fault claim (see Triangle R. Inc. v Progressive Ins. Co., 36 Misc 3d 151, 2012 NY Slip Op 51685). In view of the foregoing, we need not and do not address plaintiff’s alternative argument that the noticed depositions were otherwise unwarranted.”
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If you are that serious about the fraud, then bring a Supreme Court action where courts will give you more latitude to pursue a common-law fraud action. Or, try your hand at a Rico if you have enough information on the provider.
Key Takeaway
This decision reinforces that insurers must act decisively within statutory timeframes to preserve fraud defenses. Courts will not allow discovery related to fraudulent procurement defenses when insurers fail to demonstrate they properly denied claims initially. For insurers suspecting genuine fraud, pursuing separate Supreme Court actions or federal RICO claims may provide better litigation pathways than attempting to resurrect waived defenses in no-fault proceedings. A comprehensive overview of preserved and waived defenses is available in the legal encyclopedia.
Legal Update (February 2026): Since this post’s publication in 2014, New York’s no-fault fee schedules have undergone multiple revisions, and regulatory amendments have been implemented affecting reimbursement rates and procedural requirements. The Insurance Department has updated various fee schedule provisions and claim processing regulations that may impact the application of procedural defenses discussed in this analysis. Practitioners should verify current fee schedule amounts, regulatory timeframes, and procedural requirements when applying the Triangle R doctrine to contemporary no-fault litigation.
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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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