Key Takeaway
Court grants declaratory judgment after defendant fails to provide evidence of attending scheduled independent medical examinations in no-fault insurance case.
American Tr. Ins. Co. v Urena, 2013 NY Slip Op 31751(U)(Sup Ct. NY CO. 2013) ** American Transit is represented by Law Offices of James F. Sullivan, P.C. **
Here is the most important of the case: “The cross-moving papers show that the letters scheduling the IMEs were properly addressed (to both Urena at the address given and to her attorneys) and mailed (exh I). Dr. Santiago’s affidavit establishes that he was there at the time and place noticed for both IMEs but that Urena did not appear for either exam (exh J). While Dr. Santiago does not explain how he remembers, or what records he reviewed to determine that Urena never appeared, Dr. Santiago did submit an affidavit. And that affidavit has not been contradicted by the movant. Plaintiff has submitted proof that Urena did not appear for either exam and movant has not submitted any proof that she did appear.”
Invariably, defense counsel in her diatribe stated that Plaintiff did not present any records, time stamped documents, and could never recall that this Defendant did not appear on a given date and time. Again, a Supreme Court Justice says: show me proof that Defendant did show up. And as is usually the case, Defendant could not present a scintilla of proof on this score.
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- Understanding when supplemental affirmations are acceptable in declaratory judgment cases
- How declaratory judgment actions can moot underlying Civil Court cases
- Civil Court’s limited powers in declaratory judgment proceedings
- Declaratory judgment outcomes following defendant defaults
- New York No-Fault Insurance Law
Legal Update (February 2026): Since 2013, New York’s no-fault regulations regarding independent medical examinations may have been amended, including potential changes to notice requirements, scheduling procedures, and evidentiary standards for proving non-appearance at IMEs. Additionally, court procedural rules and evidentiary requirements for declaratory judgment actions in insurance coverage disputes may have evolved. Practitioners should verify current provisions of 11 NYCRR 65 and applicable Civil Practice Law and Rules when handling IME non-appearance cases.
