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.
This article is part of our ongoing coverage coverage, with 297 published articles analyzing coverage 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.
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 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.
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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.
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.
About This Topic
Insurance Coverage Issues in New York
Coverage disputes determine whether an insurance policy provides benefits for a particular claim. In the no-fault context, coverage questions involve policy inception, named insured status, vehicle registration requirements, priority of coverage among multiple insurers, and the applicability of exclusions. These articles examine how New York courts resolve coverage disputes, the burden of proof on coverage defenses, and the interplay between regulatory requirements and policy language.
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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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