DJ granted – Defendant failed to present evidence that Defendant attended IME

Independent Medical Examinations (IMEs) serve as critical tools for insurance companies to evaluate the nature and extent of injuries claimed in no-fault cases. When insureds fail to appear for properly scheduled IMEs, insurers may disclaim coverage based on the insured’s failure to cooperate with the policy’s terms. However, as the Supreme Court decision in American Transit Insurance Co. v Urena demonstrates, insurers must meet their evidentiary burden when asserting IME no-show defenses, and insureds who cannot prove attendance bear the consequences.

This case illustrates the burden-shifting framework that governs declaratory judgment actions involving IME nonappearance. The decision provides crucial guidance on what constitutes sufficient proof of IME scheduling, proper notice, and nonappearance—and what happens when defendants fail to rebut the insurer’s prima facie showing.

Case Background

American Transit Insurance Company filed a declaratory judgment action seeking a determination that it properly disclaimed coverage based on Ms. Urena’s failure to appear for two scheduled IMEs. The insurer had to establish several elements: that it properly scheduled the IMEs, provided adequate notice to both the insured and her attorney, and that the insured actually failed to appear. The burden then shifted to Ms. Urena to demonstrate either that she did appear or that the notices were inadequate.

The procedural posture is significant—this was a declaratory judgment action filed in Supreme Court, New York County, rather than a standard no-fault reimbursement claim brought by a medical provider. American Transit sought a declaration of its rights and obligations under the insurance policy, specifically whether the insured’s IME nonappearances justified coverage disclaimer.

Court’s Decision

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.

Legal Significance

This decision reinforces fundamental principles governing burden of proof in IME nonappearance cases. The insurer’s prima facie showing requires three elements: proper addressing and mailing of IME notices, an affidavit from someone with personal knowledge that the insured failed to appear (typically the examining physician), and evidence that notices were sent to both the insured and their attorney when represented.

The court’s acceptance of Dr. Santiago’s affidavit despite his failure to explain how he remembered or what records he reviewed reflects a practical approach to IME nonappearance proof. Unlike the stringent personal knowledge requirements courts apply in EUO nonappearance cases (as seen in Alrof and its progeny), IME nonappearance cases often involve physician affidavits that courts accept even without detailed record-keeping explanations.

Once the insurer establishes this prima facie showing, the burden shifts decisively to the insured. The defendant must produce evidence either proving attendance or establishing deficiencies in the notice. Mere argument by defense counsel is insufficient—the insured needs affidavits, time-stamped documents, calendars, or other competent evidence demonstrating presence at the IME location and time.

Practical Implications

For insurance companies pursuing declaratory judgment actions based on IME nonappearances, this case provides a successful template. Insurers should ensure they can document: (1) proper addressing of notices to both insureds and their counsel; (2) proof of mailing; and (3) physician affidavits attesting to nonappearance. While physicians need not explain every detail of their record-keeping systems, they must affirmatively state they were present at the scheduled time and location and the insured did not appear.

For insureds and their attorneys, the lesson is clear: respond substantively to IME nonappearance claims. If the insured did attend, produce evidence—photos, receipts, calendar entries, witness statements, anything demonstrating physical presence. If the insured missed the IME, challenge the adequacy of notice by showing improper addressing, lack of proof of mailing, or unreasonable scheduling. Silence or mere attorney argument will result in judgment for the insurer.

The case also highlights strategic considerations regarding declaratory judgment actions versus standard claim denial litigation. Insurers may prefer Supreme Court declaratory judgment proceedings for IME disputes, believing they receive more favorable treatment than in Civil Court or Appellate Term no-fault litigation. The procedural differences between these forums can significantly impact outcomes.

Related Articles

• 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.