Another IME no-show victory shrowded in American Transit citations

Healthy Way Acupuncture, P.C. v Allstate Ins. Co.,  2014 NY Slip Op 50841(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (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), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).”

This is a fitting decision as the author of this appeal was my co-author in American Transit v. Solorzano, James F. Sullivan, Esq.

Finally, I was informed that Plaintiff’s main argument was that the IME letters were sent more than 15-business to 30-calendar days after receipt of no-fault billing, therefore the IME letters were not timely.  If I were writing this decision, I would state clearly that the time frames deal with the 10-day follow-up period and that the a denial is not needed.  While the Court reaches this conclusion, it never spells it out.  I believe some of the appeals from Justice Billings’ decisions will force the Court to explicitly spell out the “time frames” the Court is referencing.

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Legal Update (February 2026): Since this 2014 decision, New York’s no-fault regulations and IME procedures may have been subject to amendments, including potential changes to notice requirements, scheduling protocols, and denial procedures. Additionally, appellate precedent regarding IME non-appearance consequences and retroactive claim denials may have evolved through subsequent court decisions. Practitioners should verify current regulatory provisions and case law developments when handling IME-related matters.