Reasonableness – the new buzz word

Reasonableness mattered in Center for Orthopedic Surgery, but mailing proof did not disappear. The insurer established notice and nonappearance, and the provider did not raise a factual issue about the requests. The court also rejected a counsel-copy objection because representation for the claim had not been competently established.

Historical note — Last reviewed: September 2026. Jason’s March 2011 forecast concerned reasonableness objections, not the abolition of mailing proof; Center for Orthopedic Surgery and the later distinctions collected in the IME directory should be read by claim stage, proof and forum.

What the March 2011 decision actually held

Center for Orthopedic Surgery, LLP v New York Central Mutual Fire Insurance Co., 31 Misc 3d 128(A), was decided March 29, 2011, by the Appellate Term, First Department. It reversed the denial of the insurer’s summary-judgment motion and dismissed the provider’s complaint.

The insurer’s documents established mailing of the IME notices and the assignor’s failure to appear. The provider did not raise a triable issue about either the requests’ reasonableness or the failure to attend.

The opinion also addressed an argument that the insurer had not proved mailing to the assignor’s attorney. That objection failed because the record lacked competent proof that the assignor was represented concerning the no-fault claim. The court did not prescribe a universal list of documents required to establish representation.

Jason’s original prediction

This was Jason’s March 2011 reaction:

It used to be “you cannot prove you mailed it.” Now, the new mantra is that the verification request/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 decision.

He separately commented on the counsel issue:

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.

Those observations retain the tone and timing of the original post. They describe what Jason saw developing in the cases he was reading. They should not be converted into a holding that reasonableness replaced mailing requirements or that every later court adopted one new standard.

Mailing and reasonableness answer different questions

Mailing proof concerns whether the notice was sent in a legally sufficient way. Reasonableness concerns the request itself. Successful proof of one does not automatically decide the other.

The court in this case first identified the insurer’s prima facie showing. It then addressed the provider’s opposition. That sequence matters. The decision does not require the opponent to rescue an inadequate initial motion by proving an unreasonable demand.

For comparison, East 75th Street accepted evidence of scheduling-notice mailing and attendance from different witnesses. Preferred Ortho did not consider an address objection raised for the first time on appeal. Neither case treats mailing as obsolete. Their distinct outcomes help explain why the original “new buzz word” should remain commentary rather than a replacement doctrine.

What the opinion leaves unanswered

The short decision does not describe a disputed travel distance, competing appointment, medical specialty problem, or schedule of repeated examinations. It therefore cannot establish that a particular example of inconvenience is always enough—or never enough—to defeat a motion.

A reasonableness argument in another file needs the circumstances of that request. As an organizational matter, preserve the actual letter, its date, the place and time stated, any communication asking for a change, and the response. That list describes material a reviewer may need; it is not a judicial checklist announced in Center for Orthopedic Surgery.

Nor does this case establish a universal rule that an objection must always be made in a specified form at a specified moment. It reports a failure to raise a triable issue on the record presented. A new claim requires advice about the actual demand and applicable obligations, not a decision to skip an examination based on a generalized objection.

Representation and a missed copy to counsel

The representation point is narrower than saying an insurer never needs to communicate with counsel. The provider had not supplied competent proof that the assignor had counsel for this no-fault claim.

The opinion does not say that only a signed retainer, filed appearance or particular letter can establish that fact. Those documents may be relevant in a different record, but the opinion does not make any one of them an exclusive proof requirement.

A useful review separates three questions: was the injured person represented concerning the matter, what information about that representation was communicated, and what notice obligation is being asserted? The facts and controlling authority supply the answer. The rejected argument here does not resolve every later failure-to-copy-counsel dispute.

Unitrin did not excuse an improper request

The decision Jason mentioned was Unitrin Advantage v Bayshore Physical Therapy, 82 AD3d 559 (1st Dept 2011), not a case against Bay Ridge Medical Imaging. It treated failure to attend reasonably requested IMEs as a coverage defense and accepted the insurer’s showing that its requests complied with the applicable procedures and time frames.

That accepted compliance should not be omitted when discussing the result. Acosta’s 2022 majority later denied summary judgment when the insurer’s timing compliance could not be discerned from the record, even while relying on Unitrin’s framework.

The useful distinction is between the consequence of an established no-show and the proof that the examination was properly required. An insurer’s invocation of a coverage defense does not itself prove the necessary facts.

The later history keeps the issue specific

Nationwide General v Gaines (2025) distinguishes pre-claim IME notices from post-claim verification requests. Its chronology explains why importing a post-claim timing objection did not succeed there. It is not a holding that all requests are reasonable regardless of their circumstances.

For an issue involving use of a scheduling contact, Brand’s Lynn Carter renewal motion is a different kind of comparison. The court had no evidence that the assignor even attempted to reschedule. It did not approve pseudonyms or decide what would happen on proof of an unsuccessful attempt.

Keeping these questions separate makes the original note more useful. It directs the reader to the actual ground of dispute instead of inviting an argument based on a label.

Reading this note when reviewing a claim

Start with what is known, not a preferred conclusion. Identify the applicable forum, the notice and any related correspondence, the examination chronology, the evidence of attendance or absence, and the arguments already made in court. The case citations below supply comparisons for those issues.

An inconvenient demand and an unproved mailing are not synonyms. Neither is an unpreserved argument the same thing as an argument rejected on the merits. The court’s actual reasoning—not the prominence of a phrase in a case summary—determines what the decision can support.

A useful contrast is Great Health Care v Hertz, where the insurer did not establish IME-notice mailing and separately lacked competent EUO-nonappearance proof. The provider still failed to establish its own right to summary judgment. That result helps distinguish defeating an opponent’s motion from proving entitlement to one’s own judgment.

CPLR 3212(b) directs attention to the evidentiary showing and whether a material issue requires a trial. In Center for Orthopedic Surgery, the insurer had made its showing and the provider’s objections were inadequate. In Great Health, the defects appeared in different parts of the parties’ competing applications. Those contrasting records explain why a reasonableness argument is not a substitute for examining the moving papers first.

Jason’s original prediction captures the interest in a recurring defense. The decisions show how that defense fits alongside, rather than replaces, the other questions a no-fault motion presents.

Connect to the Encyclopedia

The IME no-show case directory connects notice, attendance, timing and procedural decisions:

• East 75th Street: the Nassau County examination-notice record
• Lucas: physician and employee evidence in the First Department
• Acosta: timing proof and the separate Unitrin concurrence
• Preferred Ortho: an address objection first raised on appeal
• Brand v ELRAC: why the Lynn Carter evidence did not justify renewal

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.