Key Takeaway
Analysis of Tyorkin v Garrison case discussing New York no-fault insurance regulation fee schedule defenses and NF-10 denial form requirements in 2016 court decision.
This article is part of our ongoing fee schedule coverage, with 118 published articles analyzing fee schedule 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.
Tyorkin v Garrison Prop. & Cas. Ins. Co., 2016 NY Slip Op 50846(U)(Civ. Ct. Kings Co. 2016)
(1) “In the case at bar, Defendant’s affiant, Raina Lira, a Claims Adjuster employed by Defendant, avers that Defendant, through its vendor, Auto Injury Solutions (AIS), mailed the [*2]Explanation of Reimbursement Form (EOR) to the medical provider. There is no indication that a NF-10 form was issued in this matter although Ms. Lira avers that in applicable instances, the Denial of Claim Form (NF-10) is sent. Further, there is no indication that the EOR form, which was the only document issued in response to Plaintiff’s claim, is a form or letter approved by the Department as so allowed by 11 NYCRR 65-3.8(c)(1). Thus, notwithstanding both parties’ arguments with regards to the substantive merits of the peer review defense, the Court finds that such defense is precluded by Defendant’s failure to issue a NF-10 Denial of Claim form.”
Here’s a silly question. Was this is an out of state based policy? Did anyone argue that out of state law applied? The policy mandates arbitration? Alrof, Bright Supply, bad affidavits?
(2) “Likewise, in this instance, the Court finds that Defendant’s fee schedule defense is neither precluded by timeliness or its failure to issue a Denial of Claim form as the language of the statute strictly mandates that “no payment shall be due .under any circumstances” for medical service fees that exceed the fee schedule charges. 11 NYCRR 65-3.8(g). In other words, [*3]Plaintiff would only be entitled to the payment of the subject bill at the rates permissible and authorized in the state of New Jersey. The Court is unpersuaded by Defendant’s argument that payment for Plaintiff’s bill is outright prohibited simply because the billed amount is higher than permissible. The regulation only reduces payment to the amount authorized by the applicable fee schedule.”
This is an important statement as various arbitrators have taken the position that over-billing is tantamount to failure to provide proof of claim and nothing should be awarded. While inartfully drafted, 65-3.8(g)(iii) sought to overturn Mercury v. Encare, which disallowed the insurance company to raise a fee schedule defense to grossly over-billed services.
(3) “In Ms. Moreno’s affidavit, upon which she concludes that the proper amount of the bill would be $5,976.50, rather than the billed amount of $10,144.88, there is no further explanation as to what the sum comprises of. While the Court may consider an attorney affirmation in the explanation of fee schedule provisions and the Court may take judicial notice of the fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 18 ), the attorney affirmation of Dianne Galluzzo neither explains Ms. Moreno’s analysis or explains allowable reductions. The Court cannot presume to be knowledgeable of fee schedule reductions that, on its face, cannot be specifically adduced, and will not make any findings of fact as to such reductions. As such, a triable issue of fact remains as to its fee schedule defense. Further, the Court notes that while Ms. Moreno’s analysis sufficiently raises a triable issue, her analysis alone is inarticulate and insufficient to be the basis of summary judgment.
Very sloppy. There is no quality control over these cases.
Related Articles
- New York No-Fault Insurance Law
- NY Acupuncture Prima Facie Defense: Chiropractor Rate Limitations Upheld
- Understanding Medical Billing and Down-Coding in New York No-Fault Insurance Claims
- Fee schedule defense – competent evidence?
- Fee Schedule Defense Requirements in No-Fault Insurance Cases | Long Island & NYC Legal Analysis
Legal Update (February 2026): Since this post’s publication in 2016, the fee schedule regulations under 11 NYCRR 65-3, including section 65-3.8 governing denial forms and reimbursement procedures, may have undergone amendments or clarifications. The Department of Financial Services has periodically updated fee schedule provisions and claim processing requirements over the past decade. Practitioners should verify current regulatory language and any recent interpretive guidance regarding EOR forms, NF-10 denial requirements, and fee schedule defense procedures.
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
Fee Schedule Issues in No-Fault Insurance
The New York no-fault fee schedule establishes the maximum reimbursement rates for medical treatment provided to injured motorists. Disputes over fee schedule calculations, coding, usual and customary charges, and the applicability of workers compensation fee schedules to no-fault claims are common. These articles analyze fee schedule regulations, court decisions on reimbursement disputes, and the practical challenges providers face in obtaining appropriate payment under the no-fault system.
118 published articles in Fee Schedule
Keep Reading
More Fee Schedule Analysis
Acupuncture Reimbursements and Insurance Legalities Explained
Explore the Forrest Chen v. GEICO case and its impact on acupuncture insurance reimbursements in NY. Key insights for providers and patients.
Dec 11, 2024
Simple addition is insufficient
NY court rules simple addition insufficient to prove proper fee schedule calculations in no-fault insurance case, requiring detailed evidence of code utilization.
May 22, 2021
More Acupuncture fee Schedule – no new ground covered here
NY court upholds workers' compensation fee schedule for acupuncture services and rejects fee schedule defense preclusion in 2018 no-fault insurance case.
Jul 21, 2018
The By-Report
Analysis of Bronx Acupuncture v Hereford case clarifying that by-report codes are verification issues, not automatic denials in NY no-fault insurance claims.
Feb 2, 2017
Comp defense succeeds but medical necessity defense falters
Court rules fee schedule defense succeeds with employee affidavit but medical necessity defense fails when plaintiff submits sworn letter from treating chiropractor
Mar 25, 2014
Prior rulings on acupuncture fee schedule and proof needed to oppose a medical necessity motion stand
New York appellate court clarifies acupuncture billing rates, medical necessity proof standards, and scope of practice in no-fault insurance disputes.
Dec 27, 2010Common Questions
Frequently Asked Questions
What is the no-fault fee schedule?
New York's no-fault fee schedule, established by the Workers' Compensation Board and the Department of Financial Services, sets the maximum reimbursement rates that no-fault insurers must pay for medical services. When an insurer pays less than the billed amount, citing the fee schedule as a defense, the provider can challenge the reduction by demonstrating that the fee schedule was improperly applied or that the services are not subject to fee schedule limitations.
Can a medical provider charge more than the fee schedule allows?
Medical providers treating no-fault patients are generally limited to the amounts set by the fee schedule and cannot balance-bill the patient for the difference. However, certain services may not be covered by the fee schedule, and disputes about whether a specific service falls within the fee schedule are common in no-fault litigation. The Department of Financial Services periodically updates the fee schedule rates.
How are fee schedule disputes resolved in no-fault arbitration?
When an insurer partially pays a claim citing the fee schedule, the provider can challenge the reduction through no-fault arbitration. The provider must demonstrate that the service billed is not subject to the fee schedule or that the fee schedule was incorrectly applied. The insurer bears the burden of proving the fee schedule applies and the correct rate was used. Fee schedule disputes often involve coding issues, modifier usage, and applicability of Workers' Compensation rates.
Does the no-fault fee schedule apply to all medical services?
Not all medical services are subject to the no-fault fee schedule. Certain services, supplies, and procedures may fall outside its scope, in which case the provider may bill the usual and customary rate. Disputes about whether a specific service or billing code is covered by the fee schedule are common. The Workers' Compensation Board fee schedule and the Department of Financial Services ground rules guide which services are covered and at what rates.
Was this article helpful?
About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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 fee schedule 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.
