Key Takeaway
Tri-Mount Acupuncture: the insurer won dismissal with IME notice, nonappearance and denial-mailing evidence. Jason's original affidavit checklist preserved.
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: The insurer won Tri-Mount on its 2011 proof; Gaines (2025) later distinguished pre-claim IME scheduling and held that the coverage defense there did not require proof of a timely disclaimer.
Whose victory was Tri-Mount?
Tri-Mount Acupuncture v New York Central Mutual, 2011 NY Slip Op 50335(U), was a victory for the insurer. The Appellate Term, Second Department, reversed the provider’s judgment and dismissed the complaint. The provider’s attorney affirmation did not raise a triable issue.
Jason’s original checklist was about the evidence supporting the insurer’s motion.
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Jason’s March 2011 checklist
Affidavit from vendor? (check)
Affidavit from litigation examiner? (check)
Affirmations/affidavits from healthcare professionals retained to perform the IME? (check)
Victory is nigh.
What each witness established
The scheduling vendor’s employee described the office practices used to mail the IME letters. The litigation examiner supplied proof of timely denial mailing. The examining physicians and chiropractors supplied evidence of nonappearance. The decision does not say those witnesses gave opinions about the patient’s treatment needs.
This is why a checklist of witness titles alone is not enough. In Alleviation, the insurer failed to establish timely mailing. In Village Medical, the doctors’ affidavits did not explain their recollection. The missing element differs.
The examination rules behind the proof
The condition requiring reasonable medical examinations is in 11 NYCRR 65-1.1(d), not the serious-injury definition in Insurance Law § 5102(d). The scheduling and convenience provisions appear in section 65-3.5(d)–(e). The 2005 Insurance Department opinion treats an excuse for nonattendance as fact-specific; it supplies no automatic emergency or transport exception. Read its pre-claim discussion alongside the later Gaines decision rather than assuming the two have identical scope.
Frequently Asked Questions
What constitutes a valid excuse for missing an IME?
The reason and supporting evidence matter. Illness, transport problems or another conflict should be raised promptly and documented; none is an automatic safe harbor in the Tri-Mount decision.
How much notice must insurance companies provide for IME scheduling?
Distinguish advance notice from the deadline for holding a post-claim verification IME. Tri-Mount concerns the evidence of scheduling and mailing; it does not create a universal advance-notice period.
Can insurance companies require multiple IMEs for the same condition?
The mandatory endorsement permits examinations when and as often as reasonably required. The rule does not restrict every further examination to a new injury or changed treatment.
What happens if a patient shows up but the examiner doesn’t?
Keep contemporaneous proof of arrival and the cancellation, and notify the insurer. A dispute over what happened must be resolved from the evidence; one cancellation does not automatically invalidate every later request.
Are there limits on travel distance for IMEs?
Section 65-3.5(e) requires a reasonably convenient place and time. The cited provision sets no mileage limit; explain a particular travel problem and request a workable arrangement.
How long does the insurance company have to schedule an IME after requesting one?
For an examination requested as additional verification, section 65-3.5(d) calls for it to be held within 30 calendar days of receipt of the prescribed verification forms. Gaines separately addresses notices sent before claims arrive.
Connect to the Encyclopedia
Start with the IME no-show encyclopedia hub for the case directory and the distinction between notice, attendance and denial evidence.
- Brand Medical’s address-matching issue
- Brooklyn Heights: the separate duplicate-denial issue
- MDJ Medical: physician and mailing proof
- Alleviation: timely mailing not established
- Village Medical: unexplained recollection
For review of a particular no-fault dispute, contact the Law Office of Jason Tenenbaum.
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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Oct 13, 2016Frequently Asked Questions
Common Questions About This Topic
6 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What constitutes a valid excuse for missing an IME?
The reason and supporting evidence matter. Illness, transport problems or another conflict should be raised promptly and documented; none is an automatic safe harbor in the Tri-Mount decision.
How much notice must insurance companies provide for IME scheduling?
Distinguish advance notice from the deadline for holding a post-claim verification IME. Tri-Mount concerns the evidence of scheduling and mailing; it does not create a universal advance-notice period.
Can insurance companies require multiple IMEs for the same condition?
The mandatory endorsement permits examinations when and as often as reasonably required. The rule does not restrict every further examination to a new injury or changed treatment.
What happens if a patient shows up but the examiner doesn’t?
Keep contemporaneous proof of arrival and the cancellation, and notify the insurer. A dispute over what happened must be resolved from the evidence; one cancellation does not automatically invalidate every later request.
Are there limits on travel distance for IMEs?
Section 65-3.5(e) requires a reasonably convenient place and time. The cited provision sets no mileage limit; explain a particular travel problem and request a workable arrangement.
How long does the insurance company have to schedule an IME after requesting one?
For an examination requested as additional verification, section 65-3.5(d) calls for it to be held within 30 calendar days of receipt of the prescribed verification forms. Gaines separately addresses notices sent before claims arrive.
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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.
If you need legal help with a ime issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
