Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and defendant was the no-fault insurance carrier at the time the automobile accident occurred. The amount at issue is $1,791.81. A trial on the matter was conducted by this Court on January 5, 2007. Based on the testimony and evidence adduced at trial, this Court makes the following findings of fact and conclusions of law.

The parties stipulated to Plaintiff's prima facie case and Defendant's timely denial of the claim. The only issue presented to the Court is whether or not the magnetic resonance imaging (MRI) tests of Plaintiff's assignor cervical and lumbar spine were medically necessary. Defendant bore the burden of proof on this issue. Citywide Social Work & Psy. Serv. v. Travelers Indem. Co., 3 Misc 3d 608 [Civ. Ct. Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [U], 2003 WL 22471156 [Civ. Ct., Kings Co., 2003]; Fifth Ave. Pain control Center v. Allstate Ins. Co., 196 Misc 2d 801 [Civ. Ct., Queens Co., 2003].

At trial, the Plaintiff did not present any witnesses. To sustain its burden of proof, the Defendant called Dr. Harold Schechter, M.D., as its chief and primary witness. The parties stipulated to Dr. Schechter testifying as a medical expert in the field of Internal Medicine. Plaintiff did not object to Dr. Schechter's peer review report being introduced into evidence (see Exhibit A). Dr. Schechter testified that he did not exam the Plaintiff's assignor. He stated that he reviewed the MRI reports and the medical reports of the treating physician, Dr. Augustyniak, and determined that the MRI performed on the Plaintiff's assignor were not medically necessary.

A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not "medically necessary" must at least show that the services were inconsistent [*2]with generally accepted medical/professional practices. The opinion of the insurer's expert, standing, alone is insufficient to carry the insurer's burden of proving that the services were not "medically necessary". A.R. Medical Art, P.C. v. State Farm Mutual Auto. Ins. Co., 11 Misc 3d 1057[A], 815 NYS2d 493, 2006 {11 Misc 3d 1057(A)} WL 469121; Citywide Social Work & Psy, Serv. v. Travelers Indem. Co., 3 Misc 3d 608, 609, supra . "Generally accepted" practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and value that define its calling. A.R. Medical Art, P.C. v. State Farm Mutual Auto. Ins. Co., supra ; A.B. Med. Ser. v. New York Central Mut. Fire Ins. Co., 7 Misc 3d 1018[A] [Civ. Ct. Kings Co., 2005]; Citywide Social Work & Psy. Serv. v. Travelers Indemnity Co., supra .

Dr. Schechter testified that he did not exam the Plaintiff's assignor. On cross examination he stated that his opinion of lack of medical necessity was based on the medical reports that were presented to him for review. He further stated that he did not request any additional medical reports and that if he had all the medical records for his review, his opinion might have been different. At no time in his testimony did Dr. Schechter state that the MRI tests were inconsistent with generally accepted medical/professional practices. Nor did Dr. Schechter state in his peer review report that based on review of the records he cannot justify the need for the MRIs of the cervical and lumbar spine.

At trial, the defense that a claim was not medically necessary must be supported by sufficient factual evidence or proof and cannot simply be conclusory. Therefore, if the Defendant as in the case at bar, provides an insufficient factual basis or medical rationale for its peer review report at trial, the court will afford the peer review report minimal weight, and the Defendant may fail to sustain its burden of proof. Jacob Nir, M.D. v. Allstate Insurance Company, 7 Misc 3d 544 [NY City Civ. Ct., 2005]; A.B. Medical Services, PLLC v. New York Central Mutual Fire Ins. Co., 7 Misc 3d 1008 (A) [Civ. Ct. Kings Co., 2005].

The Court finds that Dr. Schechter's opinion of lack of medical necessity is conclusory and not supported by sufficient factual evidence or proof. Dr. Schechter submitted no objective testimony or evidence to establish that his opinion is what is generally accepted in the medical profession. Additionally, given the fact that Dr. Schechter did not examine the Plaintiff's assignor, and did not have the entire medical records for his review, this Court is not prepared to second guess the treating physician who decided that the MRI tests were necessary for the Plaintiff's assignor diagnosis and treatment. A.B. Med. Serv. v. New York Central Mut. Fire Ins. Co., supra ; Alliance Med. Office, P.C. v. Allstate Ins. Co., 196 Misc 2d 268 [Civ. Ct. Kings Co., 2003]; City Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., supra .

Based on the above facts, the Court finds that Defendant has failed to meet its burden of establishing its defense of lack of medical necessity. Accordingly, judgment shall be entered in favor of the Plaintiff in the amount of $1,791.81, plus statutory interest, cost and attorneys fees.

This constitutes the decision and order of this Court.

Dated: January 5, 2007________________________________

SYLVIA G. ASH, J.C.C.