Key Takeaway
Court upholds IME no-show defense using declaratory judgment case law precedent in New York no-fault insurance litigation, demonstrating retroactive claim denial rights.
Stracar Med. Servs. v New York Cent. Mut. Ins. Co., 2014 NY Slip Op 50263(U)(App. Term 1st Dept. 2014) (sorry – this was a first department case – perhaps it was wishful thinking that the judges at 141 Livingston Street would follow this)
Not only were the ATIC declaratory judgment actions that were filed en masse from 2011-2013 potent, but they created great case law. Now, I am proud to say that the case law I created has now found its way into Appellate Term orders in Civil Court cases, where most non-arbitrated no-fault matters call home.
“Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 ; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 ). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 , lv denied 17 NY3d 705 ). _“_Accordingly, when assignor[] failed to appear for the requested medical exams, had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 ; see Unitrin at 560).”
Related Articles
- Failure to attend IMEs voids coverage with Court of Appeals precedent
- The affidavits were unshakable
- IME no-show with quantum of proof regarding the no-show
- IME No-Show personal knowledge requirements
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2014 post, New York’s no-fault regulations have undergone significant amendments, including updated IME scheduling requirements and procedural modifications that may affect the standards for establishing proper notice and no-show defenses. Practitioners should verify current regulatory provisions under 11 NYCRR Part 65 and recent appellate decisions when relying on IME no-show precedents, as both substantive requirements and evidentiary standards may have evolved.
