Key Takeaway
Rosenzweig dismissed a no-fault claim after an affidavit failed to answer the peer review. Compare the 2016 ruling with Jason's original MUA comment.
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.
The provider’s affidavit did not answer the insurer’s medical reasoning. In Rosenzweig v Mercury Casualty Co., decided March 15, 2016, the Appellate Term reversed the appealed order and granted the insurer summary judgment dismissing the complaint.
Mercury had submitted a sworn peer review with a factual basis and medical rationale. The opposing affidavit failed to meaningfully discuss its conclusions, and the provider did not challenge the lower court’s determination that the insurer was otherwise entitled to judgment.
Answer the report, not just the diagnosis
Rosenzweig cites Pan Chiropractic v Mercury (2009), where a conclusory statement of disagreement did not raise a factual dispute after the carrier made its initial showing. Neither decision makes the mere existence of a peer review an automatic win.
Jason identifies MUA and diminished range of motion in his original note. The published Rosenzweig opinion does not describe those clinical details. His point concerns an affidavit that failed to engage the report; it is not a ruling that range-of-motion evidence can never be useful.
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Westcan, linked below, reached trial. The provider won after the judge credited its chiropractor’s testimony. Rosenzweig never reached that stage.
Jason’s original comment
Jason’s March 2016 comment describes the clinical background as he understood it. The published opinion does not identify MUA or range-of-motion findings; the comment is preserved without treating those details as judicial findings.
This case was an MUA where the rebuttal was predicated upon an an affidavit showing diminished ROM. There was no discussion as to the merits of the peer review. That is what happened here.
Historical note: Rosenzweig’s March 2016 decision concerns an affidavit that failed to answer the peer review, not a categorical ban on range-of-motion evidence or MUA reimbursement. Last reviewed: September 2026.
Connect to the Encyclopedia
- Medical necessity: opinions, claim timing and related cases
- A principal’s affidavit without a medical rebuttal: Gaetane
- Timely denials and an unsupported attorney affirmation: Diagnostic Medicine
- Unopposed and inadequately opposed motions: two Nassau appeals
- A provider’s MUA win after competing testimony: Westcan
For review of a particular denial or litigation record, contact the firm or see the no-fault defense practice.
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.
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