Key Takeaway
Marina v Praetorian: the insurer won reversal and dismissal after proving IME notice mailing and nonattendance. Jason's original Fogel recollection.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Last reviewed: September 2026.
Historical note: Marina records a 2010 insurer victory; later preclaim-IME analysis includes Gaines (First Department, 2025), so the older cases should not be treated as an unchanged notice manual.
The insurer won the appeal in Marina v Praetorian Insurance Co.. On July 21, 2010, the Appellate Term, First Department reversed the denial of Praetorian’s motion, granted summary judgment and dismissed the complaint. The provider was the respondent, not the party appealing an insurer victory.
The historical proof record
Praetorian established mailing of the IME notices and the assignors’ nonattendance. The provider did not raise a factual issue about the requests’ reasonableness or the failure to attend. The opinion is short. It gives the result and the burden analysis, but not the contents of every affidavit or scheduling letter.
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The court relied on Fogel (2006) and Inwood Hill Medical (2005). Inwood was an Appellate Term, First Department decision. Jason’s recollection of writing the Fogel brief is his own account, preserved below; it is not a finding in Marina. For later preclaim-notice treatment, Gaines (First Department, 2025) should be read alongside the historical cases, rather than assuming their regulatory discussion has remained unchanged.
Jason’s original note
Jason’s original 2010 introduction and recollection follow:
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:
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.
Connect to the Encyclopedia
Start with the IME no-show case directory, then compare these related records:
- SIGNET reports and the problem of proving actual nonattendance
- T & J: sworn statements without demonstrated personal knowledge
- Valdan: different denial grounds across four claims
- PR Medical: a delay letter that did not establish tolling
- Mind & Body: the address objection first raised on appeal
- MB Advanced: conflicting affidavits about the examination location
For review of a particular claim, our no-fault defense practice can assess the notices, denials and motion papers. Contact the office to discuss the file. For broader background, see New York no-fault insurance law.
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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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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