Key Takeaway
Court upholds affidavits in NY no-fault IME case, rejecting defendant's challenges to sworn testimony form and medical examination scheduling documentation.
This article is part of our ongoing ime issues coverage, with 150 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
American Transit Ins. Co. v. Casas Sosa, 2013 NY Slip Op 31588(u)(Singh, J)*My Case*
Plaintiff moved for leave to enter a default against the non-answering Defendants and for summary judgment against the answering Defendant. Appearing Defendant argued that the affidavits were insufficient. The Court shot down each of these arguments.
“Defendant, Yager, argues that Plaintiff has failed to provide proof in admissible form sufficient to eliminate all material issues of fact. Yager opines that the ”’affidavit’ of Ms. Hershman is defective and cannot serve to establish that a notice for physical examination was “mailed” because there is no recitation that the statements are made under penalty of perjury.”
“Defendant contends that, because the affirmation of Dr. Winell is undated, it is unclear that it was executed after the dates of the scheduled physical examinations. Defendant argues that, because Dr. Winell identified an office procedure and referred to his records and notes, his documentation and his written correspondence to Plaintiff should be in evidence and that without these documents Plaintiff cannot establish that there are no material issues of fact and the motion should be denied.”
“Defendant’s arguments are without merit. CPLR § 2309(b) provides that “An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs. “There is no specific form of oath required in this State” Collins v. AA Trucking Renting Corp., 209 A.D.2d 363 (1 st Dep’t 1994).”
“Ms. Hershman’s affidavit states that she was “duly sworn” and is notarized, with the notary reciting that the affidavit was “sworn to before me this 23rd day of October, 2012.” As such, her affidavit meets the requirement that an oath or affirmation be administered in a form calculated to awaken the conscience, and this Court takes notice of her affidavit.”
“As to the argument that it is unclear as to when Dr. Winell’s affidavit was executed relative to the scheduled dates of the physical examinations, this argument is unavailing. It is clear from the use of the past tense in the affidavit that it was executed after the dates of the scheduled examinations.”
“Regarding the argument that Dr. Winell is relying upon his office procedures, notes mid records and that these should therefore be produced, this argument is without merit. Dr. Winell clearly states that his affirmation is based upon personal knowledge. ”
“Yager further contends that Plaintiff did not properly provide Sosa’s attorney with notice of the physical examinations. However, there is no evidence that Sosa had an attorney at the time the notices were sent.” Note the court here places burden on medical provider/ EIP to raise an issue of fact regarding existence of attorney.”
“In conclusion, Plaintiff has provided evidence in admissible form sufficient to eliminate any question of fact. Plaintiff has shown that Mr. Sosa failed to appear for properly scheduled medical examinations, a condition president to payment of no-fault benefits to him or his assigns. Therefore, summary judgment is warranted. Plaintiff has further shown that the summons, complaint, and the present mot on were served upon each of the defendants.”
Related Articles
- Medical provider needs to prove that Assignor was represented by counsel and that counsel failed to receive notification of IME
- IME no-show (First Department)
- IME No-Show – Personal Knowledge
- Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2013 decision, CPLR § 2309 affidavit requirements and IME scheduling procedures may have been subject to amendment or clarification through subsequent court decisions and regulatory updates. Additionally, no-fault insurance examination notice requirements and proof standards may have evolved through Insurance Department guidance or legislative changes. Practitioners should verify current CPLR provisions and applicable no-fault examination procedures when relying on affidavit evidence for IME non-appearance cases.
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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Feb 24, 2013Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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