There is no coverage for this loss

A no-fault insurer can prove an IME no-show and still fail to obtain a default judgment. That distinction is the useful part of American Transit Insurance Co. v Solorzano, 108 AD3d 449 (1st Dept 2013). The insurer obtained summary relief against two providers, but its separate request for default relief had a procedural defect.

Historical note — Last reviewed: September 2026. This is a 2013 First Department decision, not a universal rule for every missed examination. Compare the later timing decisions in Acosta and Gaines (2025); the default-judgment requirements remain a separate question.

What the First Department actually granted

In American Transit v Solorzano, decided July 9, 2013, the First Department granted summary judgment against New York Spine Specialists and, after searching the record, Advanced Orthopaedics. It also denied those providers’ motions to dismiss the declaratory action because related Civil Court cases were pending.

The outcome was not an unconditional victory against every defendant. Default relief remained denied as to the other defaulting defendants. The appeal concerning default relief against Advanced became moot because Advanced was covered by the summary disposition. The court accepted the insurer’s evidence of mailing the IME notices and the patient’s nonappearance, but identified noncompliance with CPLR 3215(g)(4)(ii) on the default application.

The published counsel line names the Law Office of Jason Tenenbaum, P.C., with Jason of counsel, alongside the Law Offices of James F. Sullivan for the insurer. That is documented participation in this appeal. It is not a reason to enlarge the holding or claim that every later no-show dispute produces the same result.

Jason’s original observation

The note recorded this contemporary reaction:

I can sleep better knowing that Unitrin is not going away anytime soon. From my vantage point, I have an idea of the the bare minimum of the what the Appellate Division requires to be included in mailing and “no-show” affidavits. Tellingly, it is not as much as some of these would like it to be. Also, the non-defaulting Answering Defendant vigorously fought the no-show issue.

The comment describes Jason’s assessment of the appeal. The published disposition, rather than the comment’s shorthand, defines the relief granted.

Two applications require two different showings

Summary judgment asks whether admissible evidence establishes the requested relief without a material factual dispute. CPLR 3212(b) governs that application. In a no-show dispute, questions can include how the notices were mailed, who knows the examination was missed, and whether a particular timing rule applies. A defendant’s participation in the litigation does not relieve the moving insurer of that burden.

A default application follows a different route. CPLR 3215(f) requires proof of service, the facts constituting the claim and the default, among other applicable requirements. Default is not itself evidence of compliance with every procedural prerequisite.

The additional-mailing provision identified in Solorzano, CPLR 3215(g)(4)(ii), concerns a particular corporate-service situation. It is not a requirement to use the same additional mailing in every action against every kind of defendant. The point for a case file is to identify the service method and the provision that applies before treating a nonappearance in court as permission to enter judgment.

The two tracks can therefore produce different results in the same action. Strong evidence that an examination was missed does not repair an omitted step in obtaining default relief. Conversely, a procedural defect in the default papers does not necessarily defeat a separately supported summary-judgment application against an answering provider.

Keep the four different mailings separate

This setting can involve several kinds of correspondence. The examination notice asks the patient to attend. A denial tells a claimant or provider that benefits are being refused on a stated ground. Service of process brings a defendant into a lawsuit. An additional mailing required for particular default relief is a procedural step tied to the statute governing that application.

Those documents have different recipients, functions and proof requirements. Showing that the IME notices were mailed does not establish that process was served. Showing that a summons was served does not establish the patient’s failure to attend an examination. A claim examiner’s denial-mailing account may be strong evidence about the denial while saying nothing about the additional mailing required on a default application.

For the corporate-service provision identified here, the statute connects the additional notice to service under Business Corporation Law section 306(b). CPLR 3215(g)(4) specifies the added mailing and affidavit requirements for that setting. Identifying the defendant’s legal form and the method of service is therefore part of selecting the right rule, not clerical detail to be inferred from the case caption.

Under paragraph (ii), that additional mailing accompanies or follows the Business Corporation Law service and includes notice that service is being or has been made under that provision. The person who mails the summons executes the mailing affidavit, which is filed with the judgment. These are details of the additional-service step; they are not established merely by an affidavit describing the insurer’s ordinary IME scheduling procedure.

A partial result needs to be carried into the next step

After a decision involving several defendants, compare the operative order with the relief sought against each one. Was the application for summary judgment, default judgment, dismissal or a declaration? Which applications were granted, denied or made moot? A single headline cannot show all of those results.

CPLR 3212(g) separately addresses identifying facts that are established when summary judgment is denied or granted only in part. A remaining dispute may therefore be narrower than the initial pleadings suggest. The actual order determines what has been settled; an assumed victory on “coverage” should not substitute for reading it.

For counsel receiving a file after an appeal, the useful handoff includes the pleadings, the relevant motion papers and the appellate order, not just the favorable case citation. That allows the next procedural step to reflect the parties and issues actually affected. It also avoids treating a moot appeal as if it were a merits ruling on the default application.

What the opinion does not supply: a universal affidavit template

Jason’s original note above comments on the minimum proof he understood the First Department to accept. The published opinion does not reproduce all the affidavits, the vendor’s procedures or every exhibit. Readers should not turn that short observation into a fill-in-the-blank form that will work on an unrelated record.

The more detailed Lucas note separates office mailing procedures from evidence of nonappearance. The Radiology Today decision likewise concerns the foundation supplied by the scheduling company and the professionals involved. Those records are useful comparisons, not an invitation to copy a witness’s assertions without checking whether the new witness has the same knowledge.

An unsuccessful application provides another comparison. In Great Health, proof of denial mailing did not establish the separate IME-notice and EUO-nonappearance issues. Reading the cases together helps identify the missing factual step instead of treating every document labeled an affidavit as interchangeable.

For someone reviewing an actual denial, keep the examination notices, envelopes if available, scheduling communications and denial form together. For litigation counsel, connect each proposed statement to the witness or record that supports it. This is a practical way to examine the proof; it is not a court-mandated document checklist drawn from Solorzano.

Why the related Civil Court cases did not end this action

The providers also relied on other pending actions. CPLR 3211(a)(4) allows a motion based on another action pending between the same parties for the same cause, but expressly leaves the court discretion to make an appropriate order rather than dismiss.

That matters when reading a short appellate disposition. The existence of two case numbers does not, by itself, answer whether the parties, claims and requested relief overlap in the way the statute requires. Solorzano resolved the procedural setting before it; it did not eliminate this dismissal ground from no-fault litigation.

The distinction is relevant to both sides. A provider should not assume its collection action automatically prevents a declaratory action. An insurer should not cite this decision as permission to disregard another pending case. The pleadings, parties, relief and procedural history need to be compared.

Reading the coverage language after later IME decisions

Solorzano applied the First Department’s Unitrin decision. That line of cases treats attendance at properly requested examinations as a condition of coverage. It still matters whether the insurer has established the request and the failure to attend.

Our Acosta note explains why the First Department later denied an insurer summary judgment when the necessary timing could not be determined. Gaines, decided April 1, 2025, addresses the different situation of IME notices sent before receipt of claims. These decisions make the sequence of events important; neither turns the default-judgment statute into an optional formality.

For a disputed bill or a patient’s interrupted benefits, start with the actual notices and dates rather than the headline “no coverage.” This historical decision explains one successful coverage record and one unsuccessful procedural request. A current matter needs both questions examined.

Connect to the Encyclopedia

The IME no-show case directory connects notice, attendance, timing and procedural decisions:

• East 75th Street: the Nassau County examination-notice record
• Lucas: physician and employee evidence in the First Department
• Acosta: timing proof and the separate Unitrin concurrence
• Longevity v Citiwide: IMEs, written verification and denial timing
• Preferred Ortho: an address objection first raised on appeal

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.