Key Takeaway
Court decision reinforces that IME attendance is a condition precedent to insurer liability, with ongoing debate between Westchester and Unitrin precedents.
Independent Medical Examinations (IMEs) remain one of the most contentious areas in New York No-Fault Insurance Law. When an assignor fails to appear for a scheduled IME, insurers typically seek summary judgment to dismiss pending claims, arguing that attendance is a condition precedent to coverage. The tension between different appellate court decisions creates uncertainty for providers and insurers alike.
The Alrof decision discussed below highlights this ongoing judicial debate, particularly the conflict between the Westchester line of cases and the more provider-friendly Unitrin decision. While Westchester takes a strict approach to IME no-shows, Unitrin suggests courts should examine whether the insurer’s conduct contributed to the non-appearance. This judicial split continues to influence how courts handle cases where assignors fail to attend scheduled examinations.
Jason Tenenbaum’s Analysis:
Alrof, Inc. v Nationwide Ins. Co., 2011 NY Slip Op 51451(U)(App. Term 2d Dept. 2011)
“Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations § 65-1.1), defendant is entitled to summary judgment dismissing plaintiff’s second and third causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 ; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 ).”
I can hear frequent commenter Mitch Lustig’s voice right now discussing his disdain towards Unitrin and explaining why Central General v. Chubb does not support Unitrin.
Key Takeaway
The Alrof decision reinforces that IME attendance is a condition precedent to insurer liability, following the Westchester precedent. However, the court’s citation to Unitrin with a “but see” signal acknowledges the ongoing appellate division split on whether substantiated no-shows automatically entitle insurers to summary judgment or require deeper factual analysis.
Legal Update (February 2026): Since this 2011 analysis, New York’s no-fault insurance regulations, including the IME provisions under Insurance Department Regulations § 65-1.1, may have been substantially revised through regulatory amendments and updated fee schedules. Additionally, appellate court decisions since 2011 may have further clarified or modified the judicial treatment of IME non-appearance cases and the application of the Westchester/Unitrin framework. Practitioners should verify current regulatory provisions and recent case law developments when handling IME-related disputes.
