Key Takeaway
BR Clinton: the denial-mailing affidavit omitted one claim. Neither side won that claim; the insurer obtained judgment on the other four.
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One claim remained unresolved in BR Clinton Chiropractic v New York Central Mutual, decided May 11, 2012. The insurer’s denial-mailing affidavit addressed the first, second, fourth and fifth causes of action, but not the third. The Appellate Term, Second Department, granted the insurer judgment on the four supported claims and denied the provider’s cross motion.
Legal Update (September 2026): The First Department’s Gaines decision (2025) treats the IME coverage defense as not bill-by-bill; this 2012 Second Department denial-mailing ruling needs that jurisdictional distinction.
Last reviewed: September 2026.
Jason Tenenbaum’s original note
This is Jason’s original parenthetical, separated from the judicial language it followed.
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(At this point, Defendant wishes he could rely on Unitrin)
The missing proof concerned the denial forms
The IME scheduling affidavit established timely mailing of the appointment letters. The examining professional supplied nonattendance evidence. The gap was in the litigation examiner’s proof that a denial of the third claim had been timely mailed. Calling this an omission in the IME letters would confuse two different mailings.
The provider did not win the third claim either. Its own papers included the denial but did not establish that it was untimely mailed or conclusory, vague or without merit as a matter of law. Neither side obtained summary judgment on that claim. An insufficient affidavit is not a concession of liability.
Jason’s Unitrin aside identifies the separate preclusion issue. The First Department’s later Gaines ruling, cited above, prevents turning BR Clinton into a universal rule that every IME defense requires a timely, bill-specific denial. Counsel needs to identify the governing appellate authority before choosing that argument.
Compare Alrof’s proof of timely denials and Progressive Health’s unsuccessful cross motion. Surviving an opponent’s motion and proving entitlement to your own judgment remain different questions.
Connect to the Encyclopedia
Start with the IME no-show topic hub, then compare these related notes:
- Alrof: timely denials and the Unitrin citation
- Faith: insufficient office-mailing proof
- Progressive Health: agreed rescheduling and disputed bill receipt
- Apollo: proving the mandatory IME provision
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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Aug 20, 2014Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What must an insurer prove to win on an IME no-show defense in New York?
The governing authority and claim chronology matter. BR Clinton accepted IME notice and nonattendance proof but required denial-mailing proof for the claims before it. The First Department's 2025 Gaines ruling treats the coverage defense differently on timely disclaimer and bill-by-bill analysis.
What happens if the carrier's affidavit skips one cause of action?
In BR Clinton, the denial-mailing affidavit omitted the third claim, so the insurer did not obtain summary judgment on that claim. The omission was not a concession of liability, and the provider did not win its cross motion.
Why didn't the medical provider win the claim the carrier failed to prove?
Its papers included a denial but did not establish that the denial was untimely mailed or conclusory, vague or without merit as a matter of law. Defeating the insurer's motion did not establish the provider's own entitlement to judgment.
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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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