IME no shows reversed

Understanding IME No-Show Denials: When Trial Courts Get It Wrong

Independent Medical Examinations (IMEs) play a crucial role in New York no-fault insurance law. When injured parties fail to appear for scheduled IMEs without a valid excuse, insurance companies may deny claims based on non-cooperation with the verification process. However, trial courts sometimes incorrectly rule against insurers even when they have properly documented every step of the IME scheduling process and the patient’s failure to appear.

Two 2014 Appellate Term decisions demonstrate how insurers can successfully appeal these adverse rulings by presenting the right combination of evidence. These cases highlight the importance of maintaining detailed records of IME scheduling procedures and obtaining proper affidavits from all relevant parties involved in the process.

The IME Process in New York No-Fault Law

Under New York’s no-fault regulations at 11 NYCRR Part 65, insurance carriers have the right to request IMEs as part of their claims verification process. The regulations require that scheduling letters be sent within specified timeframes and that the examination location be reasonably convenient to the person being examined.

When a claimant — or a provider whose patient is the claimant — fails to appear for a properly scheduled IME, the insurer may issue a denial based on non-cooperation. This denial is a “condition precedent” defense: it goes to whether the insurer’s obligation to pay benefits was ever triggered, rather than simply disputing the merits of a particular claim.

The no-fault defense significance of this distinction is substantial. An IME no-show denial, if properly established, can void an insurer’s obligation for all claims associated with the non-cooperative claimant going forward — making it one of the most powerful defenses available in no-fault litigation.

The 2014 Appellate Term Decisions

Jason Tenenbaum’s Analysis:

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51256(U)(App. Term 2d Dept. 2014)

The Appellate Term reversed the trial court’s ruling because the insurer submitted the correct combination of proof:

(1) “defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with that office’s standard mailing practices and procedures”

(2) “Defendant also submitted, among other things, an affidavit by the chiropractor who was to perform the chiropractic IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs”

(3) “an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied plaintiff’s claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed”

Arco Med. NY, P.C. v AIG Indem. Ins. Co., 2014 NY Slip Op 51257(U)(App. Term 2d Dept, 2014)

(same as above)

The Appellate Term decided both cases using the same analytical framework, reinforcing that the three-part affidavit structure is the established standard for IME no-show defenses.

Legal Significance

These reversals underscore several important principles in New York no-fault litigation.

Burden of Proof on Summary Judgment. To establish an IME no-show defense on summary judgment, the insurer bears the burden of demonstrating prima facie that (a) the scheduling letters were timely mailed, (b) the claimant failed to appear, and (c) the denial was timely sent. Each element requires affidavit support — not merely documentary evidence like certificates of mailing or copies of denial letters standing alone.

Standard Mailing Practices Affidavit. The affidavit from the scheduling company is critical. It establishes a presumption of mailing by describing the office’s routine procedures: how scheduling letters are prepared, addressed, stamped, and deposited with the postal service. Courts have consistently held that this type of “practices and procedures” affidavit suffices to establish mailing even without a specific recollection of mailing any particular letter.

Appellate Review Standard. The Appellate Term’s willingness to reverse the trial court demonstrates that when the evidentiary record clearly establishes the elements of the defense, appellate courts will not defer to an erroneous trial court ruling. The strength of the three-part proof package overcomes the deference normally afforded trial level decisions.

Timeliness of Denial. The claims examiner’s affidavit establishing timely mailing of the denial is the third essential element. Under no-fault regulations, an insurer that fails to issue a timely denial is precluded from raising coverage defenses — including IME no-shows — even if the underlying defense would otherwise be valid. The denial must be sent within the regulatory timeframe after the no-show occurs.

Practical Implications

For insurance carriers and defense counsel in New York no-fault cases, these decisions provide a clear roadmap for establishing the IME no-show defense:

• Retain IME scheduling companies with robust documentation practices. The scheduling company’s affidavit is the foundation of the defense. Carriers should work with companies that can provide detailed “standard mailing practices and procedures” affidavits describing their entire letter-generation and mailing process.

• Obtain the examining physician’s affidavit promptly. The physician scheduled to perform the examination must confirm — via sworn affidavit — that the claimant did not appear at the appointed time and location. This affidavit should be obtained shortly after the no-show occurs, while memories are fresh.

• Document claim examiner procedures. The claims examiner’s affidavit must establish that the denial form was timely mailed. Carriers should ensure that their internal claim handling procedures are well-documented, allowing examiners to attest to mailing based on standard office practices if they do not have specific recollection.

• Appeal adverse trial court rulings. As these cases demonstrate, when the evidentiary record is complete and correct, trial courts that deny summary judgment to insurers presenting the three-part proof package may be reversed. Defense counsel should not accept adverse trial court decisions on IME no-show defenses without evaluating appellate options.

For healthcare providers and plaintiffs’ counsel, understanding the three-part affidavit standard is equally important. Providers may challenge any weakness in the insurer’s proof package — arguing that a “standard mailing procedures” affidavit is inadequate, that the examining physician’s affidavit lacks sufficient specificity, or that the denial was not timely mailed. Raising a genuine issue about any one of the three elements can defeat the defense at the summary judgment stage.

Related Articles

• New York No-Fault Insurance Law
• Understanding IME No-Shows in New York No-Fault Insurance: Rights, Consequences, and Strategic Considerations
• The CPLR 3212(g) paradigm
• Understanding CPLR 3212(a): Critical Timing Rules for Summary Judgment Motions in New York
• No-Fault regulatory amendments and their practical implications

---

Legal Update (February 2026): Since this 2014 analysis of IME no-show procedures, New York’s no-fault regulations may have been amended regarding IME scheduling requirements, notice provisions, and documentation standards for non-cooperation defenses. Practitioners should verify current regulatory provisions under 11 NYCRR Part 65 and recent appellate decisions interpreting IME compliance obligations.