It did not work the second time around

Interboro Insurance Co. v Johnson, 123 AD3d 667 (2014) concerned a default judgment. The insurer sought a declaration against three nonappearing providers that their claims were unrelated to the accident. The Second Department upheld denial because the insurer had not supplied sufficient facts supporting that requested declaration.

Legal Update (September 2026): The 2014 Arnica ruling cited below was reversed by the First Department in 2016; the insurer received summary judgment after the provider failed to answer objective medical findings, as Jason’s later account explains.

Last reviewed: September 2026.

What the published decisions establish

A default does not dispense with the proof required by CPLR 3215(f). Johnson did not decide a summary-judgment motion or award payment to the providers. In Mercury Casualty v Surgical Center at Milburn, the court reached the opposite default-judgment result on the record before it. Neither short opinion reproduces the radiology affidavits Jason compared below.

Two other comparisons need qualification. Koyachman allowed a different CPLR 308 service method after diligent attempts at personal delivery; it did not authorize ignoring an order to show cause. Bronx Radiology rejected a generalized low-impact study that lacked a review of the patient’s injuries. Andromeda involved photographs, medical records and examination-under-oath transcripts. Its majority found the insurer’s showing sufficient; a dissent disagreed.

There is also a later outcome to Jason’s Arnica comparison. The First Department reversed the 2014 ruling in Arnica, 137 AD3d 421 (2016) and granted insurer summary judgment because the opposing affidavit did not address objective test findings. Jason’s 2016 follow-up records that reversal.

Jason’s original 2014 commentary

Jason’s December 2014 litigation recollections are preserved below. The published decisions do not disclose the compared affidavits, so his descriptions of identical or similar proof are not independently verified here. Read the Koyachman and low-impact comparisons with the distinctions above, and the Arnica comparison with its 2016 reversal.

Perhaps the only thing worse than leaving your fate in the hands of the Civil Court is to leave your fate at the mercy of the Appellate Division.  I say this not in a disparaging way; it just bespeaks the randomness of the decisions that come from these Courts.

Those who have been in this business awhile (>10 years) can tell you that cases you didn’t think you should win you won, and those cases that you should have won, you did not win.

This occurred to me in the last month.  An appeal that I perfected due to frustration and without much legal precedent was a victory for me. (Koyachman v Paige Mgt. & Consulting, LLC, 121 A.D.3d 951 ).  I was beyond shocked to have won Koyachman.  The failure to serve an OSC as directed in the order mandates the denial; yet, there is now a Koyachman exception.

Yesterday, the court despite granting similar relief to Plaintiff on similar affidavits in Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), denied similar relief in Interboro v. Johnson.   In both of these cases, the insurance carrier solely relied upon a radiological review.  Compare Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.. 28 Misc.3d 136(A)(App. Term 2d Dept. 2010)(finding prima facie entitlement to summary judgment on causation based upon radiological review)

Compare this to  Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc.3d 135(A)(App. Term 1st Dept. 2013), where the carrier relied upon a radi0logical review and a peer review to dispute the causal relationship between the accident the treatment, and the Court dismissed the complaint.

A similar instance of this disconnection between cases with similar records  is the Appellate Term holding that a low-impact study cannot disprove causation (Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.. 17 Misc.3d 97 ), while another Appellate Term held that the low impact study was not only sufficient to raise an issue of fact; but was sufficient to prima facie prove lack of causation.   Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc.3d 153(A)(App. Term 2d Dept. 2012)

Or, how about the Appellate Term which held a conclusory affidavit was insufficient to defeat a medical necessity motion (Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc.3d 139), yet allowed the same type of conclusory affidavit to defeat the motion.    Arnica Acupuncture P.C. v Interboro Ins. Co., 43 Misc.3d 130(A)(App. Term 1st Dept. 2014)

So Johnson is another example of placing your fate with the Appellate Division and hoping for the best.

Connect to the Encyclopedia

Start with the pre-existing injuries and causation topic hub.

• Imran: a biomechanical opinion without a proper foundation
• Cariddi: the basis of an expert opinion and missing records
• Donoso: missing causal proof at trial, distinguished from stipulated no-fault records
• Shah: the defense expert’s unexplained post-accident ROM loss
• Arnica’s 2016 reversal: Jason’s account of what happened next

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