Key Takeaway
Ji Sung Kim applied the medical-necessity rebuttal rule to an IME. Read the ruling separately from Jason's account of the treatment evidence.
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The published decision and Jason’s account of his case serve different purposes here. Ji Sung Kim explains why the submitted opposition failed. Jason’s note supplies his recollection of an IME that distinguished acupuncture from physical therapy.
Last reviewed: September 2026.
Historical note: Ji Sung Kim decided the challenged motion branches; the opinion cites Pan Chiropractic, not a new universal treatment-substitution test. Read the 2016 decision.
The ruling and its limits
Ji Sung Kim Acupuncture, P.C. v American Transit Insurance Co., 2016 NY Slip Op 50873(U), decided June 3, 2016, found that the insurer’s affirmed IME report supplied a factual basis and medical rationale. The provider’s opposing affidavit did not meaningfully answer that reasoning. The Appellate Term granted the challenged dismissal branches; a claim not appealed and additional conceded claims were outside that relief.
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The opinion does not describe physical therapy replacing acupuncture, identify a universal treatment hierarchy or cite Arnica. Those connections came from Jason’s contemporaneous commentary. They should not be presented as additional findings of the court.
The Arnica comparison
Arnica Acupuncture v Interboard, 137 AD3d 421 (2016), separately rejected an affidavit not based on an examination and not addressing the objective tests in the insurer’s report. That supports a close comparison of the submissions; it does not establish that every provider must prove its treatment superior to another specialty’s care.
Jason’s original 2016 note
Jason’s original 2016 account follows. His treatment-specific details and assessment of Arnica are commentary from his case, not findings recited in the published opinion.
This was my case so therefore I am posting it. More importantly, this case is interesting because the IME report stated that the person still had disabilities and that further PT was appropriate. Dr. Cole stated that further acupuncture would not be necessary. This was sufficient to prove lack of medical necessity.
The discusses why the IME is wrong; that acupuncture would help the patient and that upon a review of the chart, the acupuncture treatment was helpful. In years passed, this would have been enough to raise an issue of fact. I believe in the post Arnica v. Interboard world, things are different now.
Connect to the Encyclopedia
Start with the medical necessity and peer-review encyclopedia, then compare these records:
- Mingmen: examination findings and the opposing affidavit
- Five Boro: missing report pages and sufficient opposition
- Brooklyn Chiropractic: separate IME and peer-review claims
- Innovative Chiropractic: different results for two 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.
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Dec 15, 2016Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is a medical necessity denial in no-fault insurance?
It is a denial asserting that the billed care was not medically necessary. It is distinct from a dispute about coverage limits or whether the patient attended a requested examination.
How do you challenge a peer review denial?
Identify the report's actual medical reasoning and the evidence answering it. The denial record and procedural setting also matter; winning opposition to summary judgment is not the same as obtaining payment.
What criteria determine medical necessity for no-fault treatment in New York?
The dispute concerns the particular care and medical record. Ji Sung Kim assessed whether the opposing affidavit answered the IME's reasoning; it did not announce a universal treatment checklist.
Can an insurer cut off no-fault benefits based on one IME?
An IME can support a medical-necessity defense, but its existence does not automatically end every benefit. Ji Sung Kim granted only the challenged branches; other claims remained outside that relief.
What is a peer review in no-fault insurance?
A peer review evaluates medical records rather than examining the patient. Whether the report is sufficient depends on its reasoning and the procedural use made of it.
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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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