Key Takeaway
AP Orthopedic won its 2015 medical-necessity appeal. Separate the credibility holding from Jason's original comment and the later trial-burden explanation.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity 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.
AP Orthopedic & Rehabilitation v Allstate affirmed the provider’s trial win on November 12, 2015. The appeal concerned one cause of action and a stipulated medical-necessity issue. The trial court’s assessment of the insurer’s witness and the proof supported the result.
Legal Update (September 2026): Dayan (November 30, 2015) clarified the provider’s ultimate trial burden after the insurer’s initial showing, a distinction absent from the earlier account of this November 12 credibility ruling.
Last reviewed: September 2026.
What the short opinion establishes
The parties stipulated that Allstate’s witness was an expert. The Appellate Term gave substantial deference to the trial court’s credibility assessment and found no basis to disturb the judgment on the appealed claim. It did not identify a particular flaw in the expert’s methods or describe the judge as pro-defendant.
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Jason’s comment supplies his own account that the provider offered no rebuttal. The published opinion does not separately say that. It also does not identify the witness as Dr. Bhatt; that name remains in the historical title without adding an unsupported identification to the case summary.
Dayan v Allstate, decided later that month, distinguishes the insurer’s initial trial burden from the provider’s ultimate burden after the insurer succeeds. Parkway Hospital’s 2019 appeal expressly records a provider win without a rebuttal witness because the insurer’s expert was not credible. Whether the insurer has met its initial burden still has to be decided on the trial evidence.
Jason’s original comment
Jason’s November 2015 comment follows. The judge’s perceived leanings and the absence of rebuttal are his account, not separate factual findings in the published opinion.
A somewhat pro-defendant judge ruled in favor of the medical provider; the medical provider did not have a rebuttal; the Appellate Term affirmed. Not good.
Connect to the Encyclopedia
Start with the medical-necessity case directory.
- Parkway Hospital: a provider win without a rebuttal witness
- Easy Care: an insufficient insurer motion despite weak opposition
- Innovative Chiropractic: a treating doctor’s bare reaffirmation
- New Life Medical: two peer reviews left unanswered
For review of a particular claim or motion, contact the firm.
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
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Aug 18, 2011Frequently Asked Questions
Common Questions About This Topic
4 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Who bears the burden of proving lack of medical necessity in New York no-fault cases?
The insurer initially must rebut the presumption attached to the claim form. Dayan explains that, after a successful showing, the provider ultimately must prove medical necessity by a preponderance of the evidence.
Does the Appellate Term defer to a trial court's credibility determinations?
Yes. AP Orthopedic gave substantial deference to the trial judge's opportunity to observe the witness while recognizing the appellate court's broad factual review power.
What made the insurer's expert testimony insufficient in the Ap Orthopedic case?
The opinion says the trial court's credibility assessment and the proof supported the provider's win. It does not identify a specific defect in the expert's methodology, records review or preparation.
What practical lesson does this case provide for insurance carriers defending medical necessity claims?
A stipulated expert's testimony still must persuade the factfinder. This decision does not guarantee an outcome based on the witness's credentials or explain a particular preparation failure.
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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.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
