IME no show reversal based upon the new 800 pound guerilla: proof of the no show

Jacoby Chiropractic, P.C. v Redland Ins. Co., 2013 NY Slip Op 51998(U)(App. Term 2d Dept 2013)

“The Civil Court (Richard G. Latin, J. ) denied both motions, finding that plaintiff had established its prima facie entitlement to summary judgment, that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and that defendant had timely and properly requested IMEs. Thus, the only issue for trial was “the no-show of the assignor at the IMEs.”

In support of its cross motion, defendant submitted an affidavit by the healthcare professional retained to perform the IMEs which established that plaintiff’s assignor had failed to appear at IMEs on June 12, 2009 and June 25, 2009. As an appearance at an IME is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ) and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted.”

How much do you want to bet that this particular judge, when confronted with the same no-show affidavit, will deny the motion for summary judgment and prompt another appeal?  He will say, well how do we know your healthcare professional was in the office that entire day and knew that the assignor failed to attend the IME.  I can see it already.

There is no end in sight.

See also: Vit Acupuncture, P.C. v Praetorian Ins. Co., 2013 NY Slip Op 52000(U)(App. Term 2d Dept 2013)

Related Articles

• Understanding IME no-show personal knowledge requirements
• Court of Appeals precedent on IME attendance voiding coverage
• Quantum of proof standards for establishing IME no-shows
• Medical provider burden of proof for counsel notification in IME cases
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2013 decision, New York’s no-fault insurance regulations under 11 NYCRR § 65-1.1 may have been amended, and procedural requirements for establishing IME non-appearance may have evolved through subsequent case law and regulatory updates. Additionally, evidentiary standards for proving no-show at IMEs may have been refined through appellate decisions in the intervening years. Practitioners should verify current regulatory provisions and recent case law regarding IME documentation requirements and burden of proof standards.