A judge in Supreme Nassau on a standard no-fault matter applies Unitrin

In New York no-fault insurance litigation, courts have struggled with conflicting precedents regarding the burden of proof for Independent Medical Examination (IME) defenses. The tension between the Westchester/Lincoln and Unitrin standards has created uncertainty, particularly in Nassau County where different approaches have emerged depending on whether the insurance carrier is plaintiff or defendant.

This case represents a significant development in New York No-Fault Insurance Law practice, as it shows Nassau Supreme Court applying Unitrin even when the insurance carrier is in a defensive position. The decision provides valuable language for practitioners handling IME no-show cases and clarifies evidentiary standards that have long confused the no-fault bar.

The divergence between the Westchester Medical Center v. Country-Wide Insurance Co. and Presbyterian Hospital v. Maryland Casualty Co. approach versus the Unitrin Advantage Insurance Co. v. Bayshore Physical Therapy standard has generated confusion throughout New York’s no-fault practice. Under Westchester/Lincoln, insurance carriers asserting IME no-show defenses must affirmatively prove both proper mailing of IME scheduling notices and the assignor’s actual failure to appear. The Unitrin standard, by contrast, shifts the burden after the carrier demonstrates proper scheduling, requiring the plaintiff-provider to come forward with evidence that the assignor did appear or had a valid excuse for non-appearance.

Nassau County Supreme Court’s historical inconsistency on this issue created strategic uncertainty for practitioners. When insurance carriers filed declaratory judgment actions as plaintiffs, many Nassau judges applied the more lenient Unitrin standard. However, when carriers defended against provider claims in plenary actions, those same judges frequently imposed the stricter Westchester/Lincoln requirements. This procedural-dependent approach lacked principled justification and enabled forum shopping through careful case positioning.

The procedural distinction made little analytical sense because the substantive legal issue remained identical regardless of whether the carrier sought declaratory relief or defended against a collection action. Both scenarios presented the same factual question: did the assignor’s failure to appear at a properly scheduled IME justify denial of no-fault benefits? The carrier’s burden of proof should logically remain constant across procedural contexts, yet Nassau County’s bifurcated approach created arbitrary outcomes based on litigation posture rather than evidentiary sufficiency.

Case Background

New York Methodist Hospital v. Country Wide Insurance Co. arose from a standard no-fault dispute where the hospital sought payment for medical services rendered to an injured patient. Country Wide denied the claims based on the patient-assignor’s alleged failure to appear at scheduled IMEs. Rather than filing a declaratory judgment action, Country Wide raised the IME no-show defense in its answer to the hospital’s collection action.

The hospital moved for summary judgment, arguing that Country Wide failed to meet its burden of proving both proper mailing of IME notices and the assignor’s actual non-appearance. This argument invoked the Westchester/Lincoln standard that many Nassau judges applied when carriers appeared as defendants. The hospital contended that Country Wide’s proof was insufficient because it failed to demonstrate through admissible evidence that the IME scheduling letters were actually mailed to the assignor and that the assignor received notice of the examination dates.

Country Wide cross-moved for summary judgment, asserting that under Unitrin, it need only demonstrate that IME notices were properly scheduled and sent. According to Country Wide’s position, the burden then shifted to the hospital to produce evidence that its assignor attended the examinations or had valid justification for non-appearance. The trial court’s resolution of this competing burden of proof framework would significantly impact the outcome and provide guidance for future Nassau County no-fault litigation.

Jason Tenenbaum’s Analysis:

New York Methodist v. Country Wide, Sup Ct. Nassau Co. Index #: 3676/11

Nassau has been all over the place on the DJ front regarding the confusion between Westchester/Lincoln and Unitrin. Yet, when the carrier is a defendant, it always seemed that Nassau County Supreme Court would apply Westchester/Lincoln.

Here is a very recent case where that Court found Unitrin to be controlling precedent. The best line of the case is as follows: “laintiff’s simple argument that Defendant failed to prove that the notices were mailed to the assignor or that the assignor failed to appear at any of the scheduled IMEs is without merit.” I would use this language in all civil court opps.

Legal Significance

The Nassau Supreme Court’s application of Unitrin in a defensive posture represents a significant step toward doctrinal consistency in no-fault litigation. By rejecting the plaintiff’s argument that the carrier must affirmatively prove both mailing and non-appearance, the court eliminated the procedural distinction that had created arbitrary outcomes. This ruling signals that the burden-shifting framework articulated in Unitrin applies regardless of whether the insurance carrier initiates a declaratory judgment action or defends against a provider’s collection claim.

The court’s language directly addresses the most common plaintiff argument in IME no-show cases: that carriers bear the burden of proving both proper notice and actual non-appearance through competent evidence. This argument, while superficially appealing, misapprehends the nature of negative proof. Requiring carriers to affirmatively establish that an assignor did not attend an examination imposes a nearly impossible evidentiary burden, as proving a negative occurrence presents inherent practical difficulties. The Unitrin framework appropriately allocates proof burdens by requiring carriers to demonstrate proper scheduling and notice, then shifting to plaintiffs the burden of producing evidence of attendance or valid excuse.

The decision’s impact extends beyond Nassau County, providing persuasive authority for other trial courts grappling with the Westchester/Lincoln versus Unitrin divide. While not binding on other venues, the court’s clear articulation of the Unitrin standard and rejection of procedure-dependent burden allocation provides valuable precedent. The ruling also serves as a template for defense motion papers, offering specific language that courts find compelling when addressing plaintiff arguments about insufficient proof of mailing or non-appearance.

Practical Implications

Defense counsel should incorporate the court’s specific language in opposition papers throughout New York’s civil courts. The statement that plaintiff’s argument regarding failure to prove mailing and non-appearance “is without merit” provides powerful responsive language when plaintiff-providers assert Westchester/Lincoln standards. This judicial endorsement of the Unitrin framework strengthens defense positions in venues where trial courts have not yet definitively resolved the burden of proof conflict.

Practitioners must recognize, however, that trial court decisions lack precedential authority and Nassau County judges retain discretion to apply different standards. While this decision suggests movement toward Unitrin adoption, it does not guarantee uniform application across all Nassau Supreme Court justices. Defense attorneys should research the assigned judge’s prior rulings on IME no-show issues and tailor arguments accordingly, using this decision as persuasive rather than controlling authority.

Plaintiff’s counsel must adapt their opposition strategies to counter Unitrin-based defenses. Rather than arguing that carriers failed to prove mailing or non-appearance, plaintiff’s papers should focus on producing affirmative evidence that assignors attended examinations, received inadequate notice, or had valid excuses for non-appearance. This proactive approach addresses the shifted burden under Unitrin and provides courts with factual grounds to deny carrier motions even under the more lenient burden-shifting standard.

Key Takeaway

This Nassau Supreme Court decision demonstrates a shift toward consistent application of Unitrin precedent regardless of the carrier’s procedural position. The court’s rejection of the plaintiff’s argument about mailing proof provides strong defensive language for insurance carriers facing IME-related challenges in no-fault litigation.

Legal Update (February 2026): Since 2012, New York courts have continued to grapple with IME defense standards, and subsequent appellate decisions may have further clarified or modified the application of Westchester/Lincoln versus Unitrin precedents in no-fault litigation. Practitioners should verify current judicial interpretations and any intervening appellate authority that may have resolved the burden of proof conflicts discussed in this post.

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