Key Takeaway
All Borough v Utica: insurer won dismissal with evidence of IME notices, nonappearance and timely denials. Jason's short 2011 note, with the decision linked.
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: This 2011 Second Department note concerns an insurer’s successful IME proof; Gaines (2025) supplies a later First Department comparison on pre-claim notices and disclaimer timing.
The decision behind the short note
Jason’s original post gave the citation and one sentence. Here is the result: All Borough Group Medical Supply v Utica Mutual, 2011 NY Slip Op 50949(U), affirmed summary judgment dismissing the provider’s complaint. The insurer prevailed on its IME no-show evidence.
The opinion addresses a missed examination, not whether an examination’s findings showed that treatment was unnecessary. Those are different defenses.
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Jason’s May 2011 note
I would seriously read this decision.
Three parts of the insurer’s showing
An employee of the scheduling company described the office practices used to mail the IME requests. Evidence from the examining psychologist’s office established nonappearance. The insurer’s no-fault specialist established timely mailing of the denials.
The court cited Stephen Fogel for the examination condition and expressly contrasted Unitrin in its discussion of preclusion. The later Gaines decision, from the First Department, involved notices sent before claims arrived and did not require proof of timely disclaimer. That makes the court and the claim stage important when comparing the two cases.
For a working comparison, read Tri-Mount’s successful affidavits beside Alleviation’s missing mailing proof and Sutphin’s disputed nonappearance. Identify which element is actually contested.
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.
- Tri-Mount: the insurer’s successful proof
- Alleviation: timely mailing not established
- Sutphin: attendance remained disputed
- MDJ Medical: competent no-show evidence
- Jason’s earlier no-show proof commentary
- Contrast: an IME medical-necessity cutoff
- Contrast: substance of a medical-necessity defense
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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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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