Key Takeaway
First Department ruling on prima facie case requirements in no-fault insurance, waiver of assignment defenses, and discovery limitations in provider claims.
This article is part of our ongoing prima facie case coverage, with 73 published articles analyzing prima facie case 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.
Tutto Anesthesia v American Country Ins. Co., 2015 NY Slip Op 50738(U)(App. Term 1st Dept. 2015)
What is there to discover? Did I just say that? In light of Ralph Medical, discovery is so limited on the carrier end, outside of good-faith based Mallela allegations.
(1) Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 .
This formulation is contingent on what the Court of Appeals does on Vivanne.
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(2) “Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 ; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 ). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475, lv denied 18 NY3d 810 ).”
Unsure why anybody would go down the AOB route in 2015, and my contribution to the world in Encare solidifed the fee schedule defense precludabiluty doctrine, but also helped usher the April 2013 amendments.
(3) Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 ; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 ). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).
I am curious what there is to discovery regarding a lack of coverage defense. The information for this would be within the possession of the carrier.
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- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2015 post, Insurance Law § 5106 and related no-fault reimbursement provisions may have been amended, particularly regarding fee schedules, timely denial requirements, and assignment verification procedures. The Court of Appeals decision in Vivanne referenced in the post has since been resolved, potentially affecting the prima facie case standards discussed. Practitioners should verify current statutory requirements and recent appellate decisions when applying these procedural defenses.
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.
About This Topic
Prima Facie Case Requirements in New York
Establishing a prima facie case is the threshold burden that every plaintiff or moving party must meet. In no-fault practice, the standards for a prima facie case on summary judgment have been refined through extensive appellate litigation — covering the sufficiency of claim forms, proof of mailing, medical evidence, and the procedural prerequisites for establishing entitlement to benefits. These articles analyze what constitutes a prima facie showing across different claim types and the evidence required to meet or defeat that burden.
73 published articles in Prima Facie case
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Jan 18, 2013Was this article helpful?
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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