Key Takeaway
Harmonic granted insurer summary judgment on IME no-show proof. Jason's 2011 note asks why the opinion did not mention a denial.
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: Harmonic’s silence about a denial is narrower than an express holding on disclaimer; Gaines (2025, First Department) later stated that timely disclaimer was unnecessary on its properly noticed IME record.
The insurer won Harmonic Physical Therapy on appeal after proving that it mailed the IME notices and that the assignor missed the examinations. Jason’s question about the absence of any mention of a denial records what caught his attention in August 2011.
Jason’s original note
Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51597(U)(App. Term 1st Dept. 2011)
“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie that it mailed the notices of the independent medical examinations (IME) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 ; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ; Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 27 Misc 3d 139, 2010 NY Slip Op 50911 ).”
Is a denial mentioned anywhere?
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What the short opinion leaves unsaid
Harmonic v Praetorian, decided August 24, 2011, also found that the provider had raised no triable issue about attendance or the reasonableness of the requests. Those parts of the ruling matter alongside the original excerpt.
The opinion cites Unitrin. That First Department decision treated failure to attend properly requested IMEs as a coverage issue outside the ordinary preclusion rule for an untimely denial.
Harmonic does not discuss a denial; that silence does not establish that no denial existed. The clearer later statement is Gaines (2025), where the First Department expressly held that the insurer did not have to establish timely disclaimer. Gaines still required proof of properly noticed examinations and nonattendance.
Compare the four Second Department decisions later collected in October 2011: those opinions expressly accepted timely-denial evidence. The difference is worth keeping visible when reading the two sets of decisions.
Connect to the Encyclopedia
Start with the IME no-show case directory.
- Four 2011 insurer wins with timely-denial proof
- Urban Well and Metro 8: IME and EUO witnesses
- Sharp View: insufficient proof of mailing
- City Anesthesia: pre-claim IMEs and the NF-2
- Village Medical: verification and timely denial after missed IMEs
For review of a particular no-fault dispute, contact the firm with the scheduling letters, claim chronology and motion papers.
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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