IME no-show (case #1)

Introduction: The Evolution of IME No-Show Standards in New York

Independent Medical Examinations represent a critical tool in New York’s no-fault insurance system, allowing insurers to evaluate the medical necessity and causation of claimed injuries through examination by physicians of their choosing. When an insured person or provider-assignee fails to appear for a properly scheduled IME without reasonable excuse, the insurer may disclaim coverage based on the claimant’s breach of the insurance policy’s cooperation clause. However, the procedural and evidentiary requirements for establishing an IME no-show defense have evolved significantly through appellate litigation, creating a detailed framework that both insurers and providers must navigate carefully.

The prima facie case for an IME no-show defense requires the insurer to demonstrate several elements: that it properly scheduled the examination, that it provided adequate notice to the examinee at the correct address, that the examination request was reasonable in scope and location, and that the examinee failed to appear without justifiable excuse. Each of these elements presents distinct proof problems, with the notice requirement proving particularly challenging given the strict procedural requirements imposed by New York’s appellate courts. The evolution from early cases that applied relatively lenient standards to more recent decisions imposing heightened proof requirements reflects the courts’ concern about protecting insureds’ substantive rights while preventing insurers from disclaiming coverage based on technical deficiencies in the scheduling process.

The Marina v. Praetorian decision represents an important data point in this evolutionary process, decided during a period when the Appellate Term, First Department was developing its approach to IME no-show cases. Understanding how this 2010 decision fits within the broader trajectory of no-fault jurisprudence requires examining both the cases that preceded it and the subsequent developments that have further refined the standards governing IME no-show litigation.

Case Background: Marina v. Praetorian

There have been an uptick in EUO and IME no-show appeals lately. The next few posts you could say are dedicated to these policy violation cases.

This one is from the Appellate Term, First Dept:

Marina v Praetorian Ins. Co., 2010 NY Slip Op 51292(U)(App. Term 1st Dept. 2010)

In Marina, a medical provider sought reimbursement for no-fault benefits allegedly due for services rendered to insureds. The insurer, Praetorian, moved for summary judgment arguing that the assignors (the actual insureds who had assigned their rights to the provider) failed to appear for Independent Medical Examinations that had been properly scheduled and noticed. The insurer submitted evidence purporting to demonstrate that it had mailed IME scheduling notices to the assignors and that they did not attend the examinations as scheduled.

The provider opposed the motion, presumably challenging either the adequacy of the insurer’s proof of mailing, the reasonableness of the IME requests, or the assignors’ alleged failure to appear. The trial court granted the insurer’s summary judgment motion, dismissing the provider’s claims based on the IME no-show defense. The provider appealed to the Appellate Term, First Department, which reviewed whether the insurer had established its prima facie entitlement to summary judgment and whether the provider had raised triable issues of fact in opposition.

Jason Tenenbaum’s Analysis

“efendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 ).”

I remember writing the brief in Fogel, as a younger attorney. I never got credit for it, but there is a story behind it, which I am not going to publish here.

It also is nice to see Inwood v. General Assurance cited. That was a huge case when it was decided 5 years ago. It set in motion the Appellate Division’s holding in Stephen Fogel. While I am on the topic of no-fault history, those of you out there who complain about what the Appellate Term, Second Department has become, probably long for a return to the “pre-fogel” and “contemporary” days.

Legal Significance: The Fogel Standard and Burden-Shifting Framework

The Marina decision’s reliance on Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Co., 35 A.D.3d 720 (2d Dept. 2006), reflects the foundational importance of that case in establishing the modern framework for IME no-show litigation. Fogel established that insurers can meet their prima facie burden through proof of proper mailing of IME notices and the assignor’s failure to appear, shifting the burden to the provider to raise triable issues regarding either the reasonableness of the request or the assignor’s justification for non-attendance.

This burden-shifting framework has profound implications for how IME no-show cases are litigated. Insurers who establish their prima facie case through competent evidence of mailing and non-appearance effectively place the onus on providers to come forward with specific evidence challenging either the procedural propriety of the IME request or the substantive reasonableness of the examination. Generic, conclusory assertions that the request was unreasonable or that the assignor had good cause for failing to appear will not suffice to defeat summary judgment.

The citation to Inwood Hill Medical v. General Assurance Co., 10 Misc 3d 18 (App. Term 2d Dept. 2005), also carries historical significance. As Jason Tenenbaum notes in his analysis, Inwood Hill was a seminal case that laid the groundwork for the Appellate Division’s subsequent decision in Fogel. The Inwood Hill court addressed the question of what constitutes a reasonable IME request, holding that providers must raise specific objections to examination scheduling rather than relying on general assertions of unreasonableness. This requirement prevents providers from using boilerplate opposition papers to create artificial issues of fact that would defeat otherwise meritorious summary judgment motions.

The Marina decision reflects the state of no-fault jurisprudence as of 2010, a period when courts were increasingly receptive to insurers’ summary judgment motions in IME no-show cases. The decision’s terse analysis—affirming summary judgment based on the insurer’s prima facie showing and the provider’s failure to raise triable issues—exemplifies the streamlined approach that appellate courts were taking to dispose of cases where providers failed to meet their burden of production in opposition.

Practical Implications: Proof Standards in Modern IME No-Show Litigation

For insurance carriers handling IME no-show disclaimers, Marina underscores the importance of maintaining rigorous documentation practices regarding IME scheduling and mailing. While the case affirmed summary judgment for the insurer, it provided relatively little detail about the specific evidence submitted to prove mailing and non-appearance. In subsequent years, courts have imposed increasingly strict requirements regarding proof of mailing, often requiring detailed affidavits from mail room personnel, contemporaneous mailing logs, and evidence of standard office mailing practices. Insurers must ensure that their proof satisfies these heightened standards to establish their prima facie case.

The case also highlights the critical importance of the opposition phase in summary judgment litigation. The provider’s failure to raise triable issues regarding reasonableness or justified non-appearance proved fatal to its case. In modern practice, providers facing IME no-show defenses should carefully investigate whether the IME request complied with all procedural requirements, whether the examination location was reasonably convenient, whether adequate notice was provided, and whether the assignor had any reasonable excuse for non-appearance. Developing a record through depositions, affidavits, or other discovery can create triable issues that defeat summary judgment.

The temporal context of Marina—decided in 2010, relatively early in the development of modern IME no-show jurisprudence—means that practitioners must evaluate its continuing vitality in light of subsequent decisions. While the basic burden-shifting framework established in Fogel and applied in Marina remains good law, subsequent cases have refined the proof requirements and imposed stricter standards on insurers seeking to establish their prima facie case. The landscape has evolved considerably over the past 15 years, and practitioners should consult more recent authorities to ensure compliance with current standards.

Related Articles

• Understanding IME No-Shows in New York No-Fault Insurance Cases
• IME no-show victory
• IME No Show: Understanding Confusing Court Interpretations of Duplicate Mailing Requirements
• Triable issue of fact as to non-appearance?
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2010 post, New York’s no-fault insurance regulations have undergone several amendments affecting IME procedures, including potential changes to notice requirements, scheduling protocols, and standards for establishing prima facie cases of non-compliance. Practitioners should verify current regulatory provisions and recent appellate decisions when handling IME no-show matters, as procedural requirements and evidentiary standards may have evolved significantly over the past 15+ years.