Key Takeaway
Five Boro involved both an incomplete peer review and a supported review met by opposing evidence. The insurer's motion failed for different reasons.
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.
Five Boro is not just a case about a successful opposing affidavit. One peer review was incomplete; another supported the insurer’s position but met a sufficient medical response. The insurer lost its motion for two different reasons.
Last reviewed: September 2026.
Historical note: Five Boro separated an incomplete initial showing from a supported showing that the provider rebutted. Read the 2016 decision.
Separate the two peer reviews
Five Boro Medical Equipment v A. Central, 2016 NY Slip Op 50412(U), decided March 28, 2016, accepted the insurer’s mailing proof and the reports’ admissible form. But the November peer review lacked pages, leaving the insurer’s initial showing inadequate for the associated claims.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
The October review did establish a prima facie medical-necessity defense for different supplies. The provider’s medical affidavit then identified the patient’s conditions and the intended benefit of each disputed item, creating a factual dispute. The Appellate Term reinstated the complaint and denied the insurer’s motion; it did not award payment to the provider.
What the decision does not supply
The published opinion does not identify the equipment as braces, TENS units or cervical pillows. It does not set out the diagnosis or label the affidavit boilerplate. Its focus is the missing pages and the connection the opposing affidavit made between the condition and each supply.
CPLR 3212(b) distinguishes judgment on established proof from a factual issue requiring trial. The two reports make that distinction worth keeping in this note.
Jason’s original 2016 note
Jason’s original 2016 comments follow. His naming anecdote is not guidance to alter an entity’s legal name, and his description of the affidavit does not establish that generic opposition suffices.
I should have brought suit as “Autoone Ins Co. v. Eastern Island Med. Care, P.C”. I think I let someone work here name Plaintiff as “Autoone Ins./General Assurance”. That name is too long.
Substantively, the Court found issues of fact since the affidavit of merit related the supply to the injury. I am sure it is boilerplate, but look at the industry.
Connect to the Encyclopedia
Start with the medical necessity and peer-review encyclopedia, then compare these records:
- B.Y., M.D.: an incomplete opposing affirmation
- Ocean Diagnostic: medical proof the insurer did not answer
- Mingmen: examination findings and the opposing affidavit
- Brooklyn Chiropractic: separate IME and peer-review claims
For review of a particular no-fault dispute, contact the firm with the relevant reports and motion papers.
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
Keep Reading
More Medical Necessity Analysis
MUA is dangerous
Mollo's 2020 MUA ruling turned on competing expert testimony. Read the actual trial result without treating an expert's safety concerns as a universal rule.
Mar 17, 2021
Another Medical Necessity?
DRD Medical defeated the insurer's motion in 2020. Compare the court's finding of a factual dispute with Jason's original criticism of the affidavit.
Apr 27, 2020
A minus v. Mercury
A Plus Medical v Mercury denied the insurer summary judgment in 2009. Read the actual holding beside Jason's original comparison of appellate records.
May 2, 2009
Objective evidence necessary
Easy Care's 2015 appeal rejected an unexplained medical-necessity opinion. The insurer lost its motion despite inadequate opposition; payment was not awarded.
Jul 21, 2015
Appellate Term Second Department expounds on sufficient medical rationale in DME case
Park Slope Medical rejected a nonresponsive DME rebuttal in 2013. The decision concerns the evidence for particular supplies, not a three-therapy limit.
May 16, 2013
And now the Ninth and Tenth follow lockstep with the Second, Eleventh and Thirteenth
Court decisions show consistent pattern: medical providers failing to submit proper affidavits of merit in medical necessity challenges will almost certainly lose at appellate...
Dec 1, 2010Was 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.
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.
