Key Takeaway
Medical providers cannot defeat IME non-cooperation defense by claiming outstanding discovery. NY appellate court rules on summary judgment standards.
South Nassau Community Hosp. v Kemper Independence Ins. Co., 2013 NY Slip Op 51384(U)(App. Term 2d Dept. 2013)
In support of its motion for summary judgment, defendant submitted an affidavit by the owner of Alternative Consulting and Examinations (ACE), the entity which had scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ). Defendant also submitted an affidavit of its examining chiropractor, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. As the District Court found, for all purposes in the action, that defendant had timely mailed the denials at issue, and as plaintiff does not challenge that finding, defendant established its prima facie entitlement to summary judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720).
In opposition to the motion, plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134, 2009 NY Slip Op 52222 ; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 )
This case is more important in the realm of Unitrin-Solorzano based declaratory judgment actions, when Defendant medical providers argue that the motion for summary judgment seeking a declaration of non-coverage is inappropriate because disclosure is outstanding. This is the first appellate case that has been presented with this fact pattern.
Related Articles
- Medical provider needs to prove that Assignor was represented by counsel and that counsel failed to receive notification of IME
- The affidavits were unshakable
- IME no-show (First Department)
- IME no-show substantiated again
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2013 decision, New York’s no-fault regulations and IME procedural requirements may have been subject to amendments through regulatory updates or legislative changes. Practitioners should verify current provisions regarding IME scheduling notice requirements, discovery standards in summary judgment motions, and the specific procedural safeguards for medical provider defenses against non-cooperation claims.
