Key Takeaway
DJ denial reversed: Court excuses IME notice misspelling, rules proper service to attorney sufficient for no-fault insurance claim coverage denial.
This article is part of our ongoing declaratory judgment action coverage, with 372 published articles analyzing declaratory judgment action 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.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa
Betancourt of counsel), for Empire Acupuncture, PC,
respondent.
Amos Weinberg, Great Neck, for Multiple Medical Health
Services P.C. and Infinite Chiropractic, PLLC, respondents.
American Tr. Ins. Co. v Marte-Rosario, 2013 NY Slip Op 07416 (1st Dept. 2013)
“Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 ). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 ). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 ,lv denied 17 NY3d 705 ).”
The address in this case for Assignor was “632 Faile Street, #1, Bronx, New York 10474.” It was noted in certain proofs that correspondences were sent to: “ /* Style Definitions */ table.MsoNormalTable {mso-style-name:“Table Normal”; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:“Times New Roman”,“serif”;} 632 Failes Street, #1, Bronx, New York 10474.” Thus, a letter was presented showing that correspondence was returned if mailed to that address. The Court held that this did not matter, and would require an affidavit of non-receipt of Marte-Rosario on this score to defeat the motion.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
Moreover, the court said that even if the letter was not received by Marte-Rosario, it was received by her personal injury attorney, Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:“Table Normal”; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:“Times New Roman”,“serif”;} The Law Offices of Barry Richard Feldman, LLC. Also, be aware that there was no proof in the record, i.e., a letter of representation, that Claimant was actually represented by Mr. Feldman. Under Appellate Term, and now Appellate Division jurisprudence, the burden is on the objectant – i.e. the medical provider or EIP – to demonstrate that the purported attorney was not counsel for Claimant when the letters were sent.
A very powerful case.
/* Style Definitions */ table.MsoNormalTable {mso-style-name:“Table Normal”; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:“Times New Roman”,“serif”;}
Related Articles
- Another IME no-show victory shrouded in American Transit citations
- Legal document quality issues in declaratory judgment actions
- First Department upholds EUO declaratory judgment victory
- Declaration of non-coverage as res judicata to accident date
- Denial of Claims
Legal Update (February 2026): Since this 2013 decision, New York’s no-fault insurance regulations and procedural requirements for IME scheduling and notice provisions may have been amended through regulatory updates or statutory changes. Practitioners should verify current notice requirements, service standards, and procedural safeguards under the most recent Insurance Law provisions and Department of Financial Services regulations.
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.
About This Topic
Declaratory Judgment Actions in Insurance Law
Declaratory judgment actions under CPLR 3001 allow insurers and claimants to obtain a judicial determination of their rights under an insurance policy before or during the course of litigation. In the no-fault context, carriers frequently seek declaratory judgments on coverage, fraud, and policy procurement issues. These articles analyze the procedural requirements, strategic considerations, and substantive standards governing declaratory judgment practice in New York insurance disputes.
372 published articles in Declaratory Judgment Action
Keep Reading
More Declaratory Judgment Action Analysis
How to Talk to a Judge in New York: What to Say, What to Avoid, and How to Present Yourself
Address the judge as 'Your Honor,' stand when you speak, wait to be recognized, and keep answers short and honest. A Long Island trial lawyer explains.
Feb 24, 2026
CPLR § 2106 Amendment Eliminates Affidavit Notarization Requirement: What This Means for New York Litigation
New York's CPLR 2106 permits affirmations in place of many sworn documents. See the 2024 and 2025 changes, exceptions, and historical case notes.
Feb 18, 2026
Court Takes Judicial Notice of Supreme Court Declaratory Judgment — Res Judicata in No-Fault Cases
How a default declaratory judgment in New York Supreme Court can have res judicata effect to end a no-fault Civil Court claim — key Long Island no-fault defense strategy.
Sep 9, 2013
More plaintiffs fail to rebut an insurance carrier’s medical utilization report
Three recent no-fault insurance cases demonstrate how plaintiffs consistently fail to provide adequate medical expert testimony to rebut insurance carriers' utilization reports.
Nov 27, 2010
IME Medical Malpractice Claims in New York: When Doctors Cross the Line
Court ruling shows IME doctors can face malpractice liability when they depart from accepted medical practice during examinations, requiring proper evidence of standard procedures.
Jun 8, 2019
No-show troubles
Three 2015 no-show decisions distinguish IME proof from a provider EUO and explain why neither side obtained summary judgment.
Nov 17, 2015Was this article helpful?
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.
If you need legal help with a declaratory judgment action matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
