Key Takeaway
Apollo v Praetorian: Insurance Law § 5103(h) supplies the mandatory IME term. The decision does not waive other proof or decide optional exclusions.
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The missing policy was not a reason to deny the insurer’s motion in Apollo Chiropractic Care v Praetorian Insurance Co., decided May 24, 2010. The Appellate Term, First Department, held that the mandatory IME provision did not have to be proved by producing the automobile policy. It reversed the order and granted summary judgment dismissing the complaint.
Still current (September 2026): Insurance Law § 5103(h) retains the incorporation provision applied in Apollo; the ruling addresses proof of the mandatory IME term, not every policy issue.
Last reviewed: September 2026.
Jason Tenenbaum’s original note
Jason’s original 2010 question follows. Apollo decided the IME issue, not the optional-exclusion or EUO comparisons.
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Would we have had the same outcome if the defense was the violation of the optional intoxication exclusion or a violation of another optional exclusion? I think not. But, on the basis of an IME or EUO defense, this decision is correct.
The statutory provision supplies a mandatory term
Insurance Law § 5103(h) directs that a policy obtained to satisfy the specified financial-security requirements be construed to contain the provisions required by the article. Apollo applied that rule to the mandatory endorsement’s IME provision.
The insurer also proved that two IME requests had been duly mailed and that the assignor failed to attend either appointment. The provider raised no triable issue. The decision removes one objection to proving the mandatory term; it does not excuse proof of the requests or nonattendance, or make the policy irrelevant to every coverage dispute.
Jason’s optional-exclusion question
Apollo did not decide an intoxication exclusion or an EUO dispute. Jason’s original paragraph raises those comparisons. The present text of § 5103(b)(2) also protects specified necessary emergency hospital services, attendant ambulance services and related screening from the intoxication exclusion. A general statement that intoxication eliminates all no-fault benefits would miss that qualification.
Keep this note focused on the policy-production point. For the evidentiary burdens that remain, compare Faith’s mailing affidavit and Metro 8’s basis-of-knowledge problem. An optional-exclusion dispute requires its own policy and statutory analysis.
Connect to the Encyclopedia
Start with the IME no-show topic hub, then compare these related notes:
- Alrof: timely denials and the Unitrin citation
- Metro 8: the witness’s basis of knowledge
- Faith: insufficient office-mailing proof
- BR Clinton: a gap in denial-mailing proof
For review of a particular no-fault dispute, contact the firm with the appointment letters, relevant claim forms 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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Aug 6, 2013Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Does an insurer have to attach the insurance policy to an IME no-show motion in New York?
Apollo held that producing the policy was unnecessary to establish the mandatory endorsement's IME provision, because Insurance Law § 5103(h) supplied the required term. It did not hold that the policy is irrelevant to every coverage dispute.
What must a no-fault insurer prove to win on an IME default?
Apollo accepted proof that two requests had been duly mailed and the assignor missed both appointments, with no triable issue raised in opposition. The missing-policy ruling does not eliminate the need for supported notice and nonattendance evidence.
Would the same rule apply to an intoxication exclusion?
Apollo did not decide that question. An optional exclusion needs its own policy and statutory analysis, including the exception in Insurance Law § 5103(b)(2) for specified necessary emergency hospital services, attendant ambulance services and related screening.
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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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