Lack of medical necessity defense upheld

Five Boro Medical v New York Central Mutual was a split result. The insurer obtained dismissal of claims for supplies furnished on June 2 and June 22, 2011. Its motion remained denied for a June 27 claim because its own papers indicated that claim might not have been timely denied. The medical-necessity defense did not win the entire case.

Historical note — Last reviewed: September 2026. Five Boro Medical, decided December 31, 2014, separates supported medical proof from denial timing; American Transit v Beach Medical Rehabilitation, 250 AD3d 870 (2026), later applied medical-necessity preclusion when timely denial was not established.

What succeeded and what did not

For the first two service dates, New York Central Mutual showed proper and timely mailing of the denial forms. Its sworn peer review supplied a factual basis and medical rationale for finding the supplies unnecessary.

The provider responded with an attorney’s affirmation but no medical evidence or other competent proof sufficient to create a triable issue. Its objection to the reviewer’s qualifications concerned the weight of her opinion rather than its admissibility on this record. The Appellate Term, First Department, granted the insurer summary judgment on those claims.

The June 27 claim was different. The insurer’s own moving papers tended to show an untimely denial. The appellate court left denial of that part of the motion intact. It did not award the provider judgment on the surviving claim.

This December 2014 ruling was discussed here in January 2015. The two dates identify the decision and the historical post; neither should be confused with a new adjudication today.

Jason’s original qualification comment

The contemporary note said:

Certain judges often play the qualification card. It works when dealing with nurses and fee schedule coders. It does not work with peer review doctors, unless the service being reviewed is of a sub-specialty that the Geffner rule would apply.

That passage preserves Jason’s 2015 shorthand and opinion. Five Boro itself did not decide a rule about nurses or fee-schedule coders, and the comment should not be read as eliminating expert-foundation objections whenever the witness is a physician.

The Geffner qualification is substantive

In Geffner v North Shore University Hospital, 57 AD3d 839 (2008), a medical-malpractice plaintiff offered an emergency physician’s affidavit addressing matters outside his expertise without establishing a foundation for those opinions. The court found the affidavit lacked probative value.

Geffner does not mean a medical opinion must always come from someone with exactly the same specialty title as the treating doctor. It means the basis for the witness’s expertise can matter when the opinion extends beyond that area. The particular qualifications and foundation must be examined.

Fine Healing Acupuncture v Country-Wide, 33 Misc 3d 55 (2011), supplies a no-fault comparison. The court rejected the contention that the insurer’s neurologist could not opine about acupuncture simply because of the specialty difference. Yet the treating acupuncturist’s affidavit raised an issue of fact, and the insurer’s judgment was reversed.

Weight is not the same as automatic acceptance

The qualification statement in Five Boro was not a finding that every opinion from that doctor would be persuasive. At a later trial, the fact-finder may assess the weight and credibility of competent testimony.

That distinction drove Metropolitan Diagnostic v Erie. The appellate court corrected the trial court’s ruling that an orthopedic surgeon was not competent to discuss MRIs ordered by a different specialist. It nevertheless left the provider’s judgment intact because the trial court did not find the testimony credible.

A party can therefore lose an objection to competency and still prevail on the evidence. Conversely, pointing to a specialty difference alone does not establish that the opponent’s proof must be excluded.

Why counsel’s affirmation was insufficient here

Five Boro says the provider supplied no medical evidence or other competent proof sufficient to answer the insurer’s supported motion. That is narrower than saying attorneys’ affirmations are useless in motion practice. Counsel can present legal arguments and direct the court to competent evidence; the problem was the missing substantive response.

The Westcan note shows a successful medical response. The treating doctor’s affidavit answered the peer review and raised a triable issue. By contrast, Bronx Mega Care shows that even a doctor’s affirmation can fail when it does not respond to the examiner’s conclusions.

Neither comparison establishes the result of a different claim. They identify what to look for when deciding whether a response addresses the motion actually made.

Timing remains a claim-by-claim inquiry

The 2026 Beach Medical decision reinforces the need to examine the denial evidence before relying on medical necessity. There the insurer failed to raise an issue about timely mailing, so the medical-necessity defense was precluded. The court considered lack of causation separately and found the evidence insufficient on that issue too.

That is not a reason to relabel an unsupported necessity argument as causation. The defenses ask different questions and require evidence addressing them. Nor does the later opinion alter the mixed result reported in Five Boro.

For a practical file review, align each bill with its service date, denial and mailing proof. Then identify the portion of the medical report said to address that claim. Five Boro is especially useful because it shows why combining several bills into a single statement that “the defense was upheld” can hide a surviving dispute.

Connect to the Encyclopedia

The medical-necessity case directory connects this note with the archive’s report, rebuttal and trial decisions:

• Metropolitan Diagnostic: competency did not decide credibility
• Westcan: an affidavit that answered the peer review
• Bronx Mega Care: a doctor’s affirmation that did not suffice
• Premier Health Choice: a supported IME cutoff
• Elmont Open MRI: timely denial and competing medical proof

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.