IME No-Show – Personal Knowledge

In Radiology Today v GEICO, the insurer proved mailing through the scheduling service and nonappearance through the medical professionals who were to conduct the IMEs. The decision accepted that evidence. It did not hold that only a doctor can ever establish a no-show, or that an employee with relevant knowledge is automatically disqualified.

Historical note — Last reviewed: September 2026. The October 2009 ruling concerns the evidence submitted on an unopposed motion; compare Lucas (2013) and the IME case directory before treating its accepted examiner statements as an exclusive proof rule.

What Radiology Today decided

Radiology Today, P.C. v GEICO Insurance Co., 25 Misc 3d 133(A), was decided October 23, 2009, by the Appellate Term, Second Department. The Civil Court had denied GEICO’s unopposed summary-judgment motion because it found the notice-mailing showing inadequate. The Appellate Term reversed and granted dismissal.

A manager at the independent medical review service described the standard office procedure used to generate and mail IME notices. The court found that procedure sufficient to establish proper addressing and mailing. The medical professionals’ affidavits and affirmations established nonappearance.

Those were two distinct sources of proof. The decision is therefore not an example of all administrative evidence being rejected. It accepted the manager’s evidence for mailing and the examiners’ evidence for attendance. It also shows that an unopposed motion still requires the court to assess the moving party’s proof.

Jason’s original observation

Jason introduced the quoted proof discussion this way in November 2009:

For those who are unsure what satisfies the “personal knowledge” prong of an IME no-show defense, the Appellate Term in uncharacterstic fashion spelled it out:

The typo and wording are preserved as part of the historical note. The passage identified a successful example. It did not say that every later case must reproduce the same witness lineup.

Personal knowledge concerns the basis, not just the job title

The later Lucas opinion accepted sworn affidavits from the scheduled physician and his employee. The court discussed the employee’s role in the physician’s no-fault department and the physician’s knowledge of procedures when a claimant did not appear. That published explanation is inconsistent with a broad rule that office employees never matter.

An appointment coordinator, an examiner and a claims examiner may know different things. When reading an affidavit, ask what the person actually observed or how the relevant office procedure supplies the stated knowledge. Employment by the insurer or vendor is not itself an answer to every evidentiary question. Neither is possession of a medical degree.

The failed-proof comparison is Great Health Care v Hertz: IME mailing was inadequately established, and the separate EUO defense lacked personal-knowledge proof. The successful comparison is East 75th Street, where the vendor’s mailing evidence and doctors’ attendance evidence addressed different parts of the defense.

Memory and records are different foundations

A witness saying “I was present and the person did not come” presents a different foundation from a witness relying on entries in an appointment system. Neither statement should be embellished with facts absent from the actual affidavit.

CPLR 4518(a) addresses business-record admissibility: the record must meet the regular-course and timing requirements. Merely describing a file as a business record does not establish those requirements. Conversely, a genuine personal observation is not automatically defective because the witness has not recited a business-record formula.

This distinction is helpful when a doctor cannot remember an appointment unaided. It does not automatically end the defense. The actual proof, its foundation and the controlling decisions must be examined. This 2009 opinion did not adjudicate every possible records-based showing.

Time lapse: compare the actual decisions

The 2019 Satya Drug opinion supplies a caution. There, the doctor’s affirmation did not adequately explain the basis for recalling a nonappearance about sixteen months earlier, and the vendor did not establish personal knowledge either. The issue was the sufficiency of those submissions, not a sixteen-month statutory expiration date.

For a later EUO comparison, the 2026 GC Chiropractic note discusses an attorney’s affirmation accepted despite a much longer interval. The two decisions concern different examinations, witnesses and records. They do not authorize a blanket statement that elapsed time either always destroys or never affects proof.

Where notice objections fit

Proof of mailing is not the same thing as proof that the recipient read a letter. A dispute over an address, a correction or a rescheduling communication should be evaluated with the actual correspondence and competent evidence. The insurer must first establish the relevant showing; the provider must then identify a supported issue rather than rely on an abstract possibility.

Solorzano found mailing and no-show evidence competent, but the short opinion did not publish a universal minimal affidavit. Brand’s Lynn Carter dispute addressed a different question: whether newly offered evidence about a pseudonym would change an earlier result on renewal. Keeping those issues separate prevents a scheduling irregularity from being mistaken for a complete answer to attendance proof.

This note concerns assigned no-fault benefits. It does not decide a patient’s tort damages or promise payment because one affidavit is weak. Its value is as an early example of evidence that succeeded, connected to later examples explaining why a different record may not.

Connect to the Encyclopedia

The IME no-show case directory connects notice, attendance, timing and procedural decisions:

• Great Health: denial mailing did not prove every no-show issue
• East 75th Street: the Nassau County examination-notice record
• Lucas: physician and employee evidence in the First Department
• Solorzano: summary judgment and default relief were different requests
• Brand v ELRAC: why the Lynn Carter evidence did not justify renewal
• GC Chiropractic (2025): a later EUO affirmation and the time-lapse objection

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.