Key Takeaway
Dayan's 2015 surgery appeal required a new trial under the proper burden of proof. It did not direct dismissal or find that the insurer had already prevailed.
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.
Dayan sent a shoulder-surgery claim back for a new trial. The error was in assigning the ultimate burden of proof, not an appellate finding that the insurer’s medical evidence had conclusively won.
Historical note: Dayan (November 30, 2015) ordered a new trial because the trial court assigned the ultimate burden incorrectly, not because the appellate court decided which medical opinion should win.
Last reviewed: September 2026.
The insurer’s showing comes first
The trial court had recognized the provider’s prima facie case and timely denial, then placed the ultimate burden on the insurer. On November 30, 2015, the Second Department’s Appellate Term reversed.
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The opinion’s condition matters: when the insurer successfully rebuts the claim-form presumption at trial, the provider must ultimately establish medical necessity by a preponderance of the evidence. The appellate court did not direct dismissal. Because the trial court’s result might have followed from the wrong burden, it ordered a new trial. Read Dayan.
The older expanded account said the appellate court had already found the insurer’s proof sufficient. That goes beyond this disposition and has been removed.
Jason’s original comment
Jason’s December 2015 reaction follows unchanged. Its discussion of the provider’s ultimate burden is conditional on a successful insurer showing; the appellate disposition was a new trial.
Here, the trial court went wrong when the following occurred: “The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66.
Well, all things are not equal. There is a presumption (an inference that must be rebutted) and sufficient evidence must be adduced to rebut the presumption. Then, and only then, must the medical provider tender admissible proof to satisfy its ultimate burden, i.e., proof that the service is medically necessary, etc.
Connect to the Encyclopedia
- Medical necessity: case directory and related decisions
- Surgicare: the trial court rejected the surgery expert’s reasoning
- Promed Orthocare: substitute testimony and a preserved objection
- Healing Art: medical necessity was outside the moving papers’ issues
- All Boro: a rebuttal that addressed another case
For review of a particular no-fault dispute, contact the firm with the denial, relevant records and procedural history.
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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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.
