Key Takeaway
Alrof v Nationwide: timely denials and IME proof supported judgment. The Westchester-Unitrin citation concerns preclusion, not insurer misconduct.
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.
The citation signal caught Jason’s attention in Alrof, Inc. v Nationwide Insurance Co., decided July 28, 2011. The Appellate Term, Second Department, cited Westchester and then Unitrin with a “but see.” It granted the insurer’s cross motion in full on appeal, reversing the provider’s partial success below.
Legal Update (September 2026): In the First Department, Nationwide General v Gaines (2025) treated a proved IME no-show as a coverage defense without a timely-disclaimer prerequisite; Alrof remains a dated Second Department motion record.
Last reviewed: September 2026.
Jason Tenenbaum’s original note
Jason’s original 2011 reaction to the citation is preserved below. It is commentary, not a finding about another lawyer’s position.
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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.
What Alrof decided, and why Unitrin appears
For the second and third causes of action, Alrof accepted proof of mailed IME requests, nonattendance from the doctor’s receptionist, and timely mailed denials. The first cause also involved a fee-schedule determination and a payment already made. It is inaccurate to describe the decision as an affirmance based only on an unexplained missed appointment.
Westchester Medical Center v Lincoln General concerned EUO nonappearance and preclusion after an untimely denial. Unitrin treated IME nonappearance as a coverage defense outside that preclusion rule. It affirmed judgment for the insurer; it was already a First Department decision in 2011.
Unitrin was not a provider-friendly ruling excusing nonattendance because of insurer misconduct. The comparison concerns preclusion, with the court, examination type and actual proof kept in view. BR Clinton’s omitted denial-mailing claim shows why that distinction mattered in another Second Department motion.
Connect to the Encyclopedia
Start with the IME no-show topic hub, then compare these related notes:
- BR Clinton: a gap in denial-mailing proof
- Apollo: proving the mandatory IME provision
- Faith: insufficient office-mailing proof
- Metro 8: the witness’s basis of knowledge
For review of a particular no-fault dispute, contact the firm with the appointment letters, relevant claim forms 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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