Key Takeaway
Court case where electrodiagnostic testing deemed medically unnecessary due to lack of diagnostic dilemma, with credible expert testimony shifting burden to plaintiff.
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Cappello v Global Liberty Ins. Co. of N.Y., 2017 NY Slip Op 51415(U)(App. Term 1st Dept. 2017)
(1) “At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.”
(2) “Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139, 2016 NY Slip Op 51125 ). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131, 2006 NY Slip Op 51871 ). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142, 2011 NY Slip Op 52227 ; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134, 2010 NY Slip Op 50715 ). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.”
The impetus to filing this appeal was the report from the attorney stating that the peer was credible but Defendant did not meet its burden. This caused me to obtain the transcript. As this was an EMG/NCV case and the expert gave two of 3 rationales for finding the service not appropriate, it seemed like a candidate for appeal. Except for All Is. Med Care, it looks like my brief made its way into the per curiam opinion.
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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 2,600 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.
82 published articles in Experts
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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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