Key Takeaway
Nassau District Court upholds IME no-show coverage defense using Stephen Fogel precedent, ruling condition precedent defenses never waive in no-fault cases.
Chiropractic Back Care of Queens Vil., P.C. v ELRAC, Inc., 2011 NY Slip Op 50544(U)(Dis. Ct. Nassau Co. 2011).
“In support of its motion, the defendant asserts that it was not required to pay or deny the instant claim because the plaintiff’s assignor failed to appear at scheduled IMEs. In Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 35 AD3d 720 (2d Dept 2006), the Court held that the appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see also NYCRR 65.12). As a condition precedent to the insurer’s liability on the policy, said defense is never waived and can be raised at any time (see Fair Price Medical Supply Corp. v. Travelers [*2]Indemnity Co., 10 NY3d 556 ).”
I just love using Fair Price and Stephen Fogel to reach the conclusion, inter alia, that “As a condition precedent to the insurer’s liability on the policy, said defense is never waived and can be raised at any time.” What is great is that this case did not cite Unitrin for its support, even though its findings were predicated upon Unitrin. Judge Murphy is implying that the Unitrin rationale is valid in the Second Department on constraint of Fogel. I tend to agree with Judge Murphy’s legal reasoning and like his writing style – Bereft of string cites and opinions that are articulately reasoned.
I am waiting for Unitrin to be applied to EUO no shows and timely notice cases. This Unitrin case has to be the greatest disaster for the Plaintiff’s bar since Mallela. And the irony is that Defense counsel in Unitrin, based upon what I can tell, advocated for his client better than many of the attorneys who substitute garbage for legal reasoning. Yet, this did not stop the unmitigated disaster that seems to have an infinite amount of aftershocks.
Related Articles
- Nassau County court applies Unitrin precedent for IME no-show defense
- Understanding diagnostic testing rights during IME examinations
- Coverage defense strategies when claimants fail to appear
- Collateral estoppel implications in coverage disputes
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2011 post, New York’s no-fault regulations have undergone multiple amendments, including changes to IME scheduling procedures, notice requirements, and waiver provisions under 11 NYCRR Part 65. The interplay between condition precedent defenses and waiver doctrines discussed in this coverage analysis may have been affected by subsequent regulatory updates and appellate decisions. Practitioners should verify current IME compliance requirements and related coverage defense standards.
