Key Takeaway
Court ruling establishes "reasonableness" as new standard for challenging IME requests in NY no-fault cases, shifting burden from mailing proof to proving unreasonable demands.
Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50473(U)
“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see 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. P.C. v General Assur. Co., 10 Misc 3d 18, 20 ; Marina v Praetorian Ins. Co., 28 Misc 3d 132, 2010 NY Slip Op 51292 ). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.”
It used to be “you cannot prove you mailed it.” Now, the new mantra is that the verification requeat/EUO request/IME request/ etc. was unreasonable. In fact, if you look at the IME no show decisions that are being decided, the appellate courts are now including as part of their standard order language that a triable issue of fact was not raised because Plaintiff failed to demonstrate the lack of reasonableness of the demand. I think this will only become more a hot button issue in light of a Unitrin
And how about the part regarding cc’ing counsel. The standard now is that the provider must provide competent evidence that the assignor had counsel.
Related Articles
- Failure to attend IMEs voids coverage with Court of Appeals precedent
- IME no show results in summary dismissal
- MVAIC fails to prove mailing of IME letters
- Whether IME no-show was timely scheduled
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this post’s publication in 2011, New York’s no-fault regulations have undergone multiple amendments, including updates to IME scheduling requirements, notice provisions, and reasonableness standards under 11 NYCRR 65-3.5 and related sections. Additionally, subsequent case law may have further refined the “reasonableness” standard for IME requests and the burden of proof requirements discussed in this decision. Practitioners should verify current regulatory provisions and recent appellate decisions when evaluating IME compliance and reasonableness challenges.
