Key Takeaway
Throgs Neck rejected an inadequate IME rebuttal. Compare South Nassau and Duke Acupuncture with Jason's original 2015 reaction to the different outcomes.
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.
Throgs Neck lost its medical-necessity appeal in November 2015. South Nassau obtained a different result that month. The opinions identify different evidentiary records; Jason’s original criticism of the affidavits is preserved below.
Historical note: Throgs Neck (2015) and South Nassau (2015) concern different motion records; Jason’s comparison is not a finding that courts applied inconsistent standards to identical evidence.
Last reviewed: September 2026.
In Throgs Neck Multicare v State Farm, the provider did not challenge the dismissal of claims subject to the fee-schedule defense. On the remaining medical-necessity issue, its affirmation failed to address the IME doctor’s findings. The dismissal stood.
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South Nassau v Mercury incorporates Duke Acupuncture v Mercury, decided November 19. Duke found conflicting medical expert opinions sufficient to defeat the insurer’s motion. It also granted the insurer’s alternative request to compel an examination before trial. South Nassau received the same discovery disposition.
Neither decision reproduces the full opposing affidavits or compares their paragraph counts. The supported distinction is inadequate rebuttal in Throgs Neck versus a factual medical dispute in Duke. A denied motion and an order permitting discovery do not amount to a payment judgment.
Jason’s original comment
Jason’s December 2015 reaction is preserved below. His comparison of the affidavits comes from that comment; the published opinions do not establish that the submissions were equally deficient.
The rebuttal affidavit was pretty poor. Yet, I would note that except for the amount of paragraphs, the rebuttal was equally as deficient as that in another recent case. In South Nassau , the Court found a triable issue of fact. Here, the Court non-suited Plaintiff. Sometimes, it really is a roll of the dice with how the Court’s will rule on particular deficient affidavits of merit.
Connect to the Encyclopedia
Start with the medical-necessity and peer-review topic hub.
- Forest Drugs: an affirmation that did not answer the IME
- Hernandez: the surgeon’s claims and summary judgment
- Total Equipment: DME supplied after an IME cutoff
- Radiology Today: peer reports and live trial testimony
For review of a particular New York no-fault dispute, contact our office.
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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Mar 4, 2009Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Who has the burden of proof on medical necessity in a New York no-fault case?
Throgs Neck concerns the insurer's summary-judgment motion. The appeal upheld dismissal after the provider failed to answer the IME findings. Trial burdens are a separate question, discussed in the linked Radiology Today note.
What makes a rebuttal affidavit sufficient to defeat summary judgment?
The opinion rejected an affirmation that did not address the IME doctor's findings. Duke Acupuncture, incorporated by South Nassau, found conflicting expert opinions sufficient for a factual dispute. Neither opinion grades an affidavit by length.
Why do similar affidavits produce different results in different cases?
That is Jason's assessment of the two submissions, not a fact established by the published decisions. The opinions identify inadequate rebuttal in Throgs Neck and conflicting medical opinions in Duke Acupuncture; they do not reproduce the full affidavits.
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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.
