Key Takeaway
New Horizon Surgical v Allstate: Court analysis of MUA medical necessity burden of proof and expert witness testimony in New York no-fault insurance disputes.
This article is part of our ongoing experts coverage, with 235 published articles analyzing experts 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.
New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51125(U)(App. Term 2d Dept. 2016)
(1) “The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.”
(2) The issue in this case is not whether chiropractors are permitted to perform MUA, but rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 ).
(3) Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 ; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130, 2006 NY Slip Op 50306 ) and, by extension, the facility fee which was sought in the claim in question.
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(4) Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128, 2013 NY Slip Op 51096 ). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131, 2006 NY Slip Op 51871 ), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.
My last post discussed the observations involving the negative IME. This is interesting on the peer review side since the Court cited to Channel Chiropractic and Patil. Those are the nurse peer reviews that with a proper foundation can be deemed sufficient to lay a foundation for determining medical appropriateness of services. This means a peer reviewer who is not certified may not be able to give an opinion on lack of medical necessity of MUA services. This would, of course, run counter to that Allstate case that came out of the Appellate Term, First Department stating that it goes to the weight of the testimony. Here, lack of training goes straight to admissibility.
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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
Expert Testimony in New York Litigation
Expert testimony is essential in most personal injury and no-fault cases — from medical experts establishing causation and damages to accident reconstructionists and economic experts calculating lost earnings. New York courts apply specific rules governing expert qualifications, the foundation for expert opinions, the use of medical journals and treatises, and the sufficiency of expert evidence on summary judgment. These articles analyze the legal standards for expert testimony and practical strategies for presenting and challenging expert evidence.
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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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