Insufficient proof that the IME letters were not received

In New York no-fault insurance litigation, the burden of proof regarding mailing and receipt of Independent Medical Examination (IME) scheduling letters has generated substantial case law. When insurance carriers deny claims based on a claimant’s failure to attend a scheduled IME, they must first establish that proper notice was provided. This requires proving that IME scheduling letters were mailed in accordance with standard office procedures. Once this showing is made, the burden shifts to the plaintiff to rebut the presumption of receipt.

The legal framework governing IME no-shows relies heavily on evidentiary presumptions. New York law presumes that properly mailed items are received by the addressee. This presumption serves important policy objectives: it prevents parties from avoiding contractual obligations by simply claiming non-receipt, while also ensuring that insurers maintain proper mailing procedures. However, this presumption is not absolute—it can be rebutted with sufficient evidence.

In practice, many healthcare providers attempt to defeat IME no-show defenses by submitting affidavits asserting that their assignors never received the scheduling letters. The legal question becomes: what type of evidence is sufficient to overcome the mailing presumption? The Second Department Appellate Term addressed this issue directly in BY MD, P.C. v NY Cent. Mut. Fire Ins. Co., providing guidance that continues to shape no-fault litigation.

Case Background

BY MD, P.C., a medical provider, brought suit against New York Central Mutual Fire Insurance Company seeking payment for no-fault benefits assigned to it by an injured patient. The insurance carrier moved for summary judgment, asserting that the assigned claimant failed to appear for scheduled Independent Medical Examinations. In support of its motion, the insurer submitted an affidavit from an employee of a third-party company retained to schedule IMEs, establishing that the scheduling letters had been timely mailed according to standard office procedures.

The plaintiff provider opposed the motion by submitting an affidavit claiming that the scheduling letters were never received. The critical legal question before the Appellate Term was whether this affidavit created a triable issue of fact sufficient to defeat summary judgment.

Jason Tenenbaum’s Analysis

By MD, P.C. v NY Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51232(U)(App. Term 2d Dept. 2014)

“In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 ). The affidavit submitted by plaintiff was insufficient to rebut the presumption of receipt (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137, 2011 NY Slip Op 52063 ; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131, 2005 NY Slip Op 50088 ). ”

This same paradigm played out in City Care Acupuncture v. NYCM, 39 Misc.3d(A)(App. Term 1st Dept, 2014) and in American Transit v. Bacchus, Index #: 310450/11.

What is ironic (or maybe not) is that all of these cases with these conclusory affidavits are from the clinics that are associated somewhat with the Safire group, e.g., AB Medical, City Care Chiro, MK Chiro, BY MD, etc. Draw your own conclusions.

Legal Significance

This decision reinforces a critical principle in no-fault litigation: mere denial of receipt is insufficient to overcome the legal presumption that properly mailed documents reach their intended recipients. The court’s analysis builds upon well-established precedent from cases like St. Vincent’s Hospital v Government Employees Insurance Co. and Top Choice Medical, P.C. v GEICO General Insurance Co., which have consistently held that conclusory affidavits lacking specific factual support cannot create triable issues of fact.

The ruling has broader implications for how courts evaluate evidence in mailing disputes. By requiring more than bare assertions of non-receipt, courts ensure that insurance carriers can rely on standard mailing procedures without facing frivolous litigation from parties who simply claim they never received properly mailed correspondence. This standard protects the efficiency of the no-fault system while still allowing genuine disputes about mailing to proceed where sufficient evidence exists.

The pattern identified across multiple cases involving similar providers suggests a litigation strategy that courts have repeatedly rejected. When the same conclusory language appears across different cases from related medical practices, courts recognize these formulaic denials for what they are—attempts to create fact questions without actual factual support.

Practical Implications

For insurance carriers, this decision validates the practice of using third-party IME scheduling companies, provided those companies maintain documented standard mailing procedures. Defense counsel should ensure their mailing affidavits contain sufficient detail about office procedures to satisfy the St. Vincent’s standard.

Healthcare providers and plaintiffs’ attorneys must recognize that generic non-receipt affidavits will not defeat IME no-show defenses. To successfully rebut the mailing presumption, providers need concrete evidence such as testimony about monitoring mail delivery, documented address changes that weren’t communicated to the insurer, or evidence of systemic mailing problems with a particular carrier or vendor.

The decision also serves as a warning about pattern litigation practices. When multiple related entities employ identical legal strategies using boilerplate affidavits, courts will scrutinize those submissions with heightened skepticism. Counsel must ensure their opposition papers contain substance tailored to the specific facts of each case rather than relying on form language.

Related Articles

• Understanding No-Fault Insurance Mailing Requirements: Lessons from the First Department’s “Venom” Decision
• The Usual Mailing Arguments Have Fallen on Deaf Ears (Again): When Courts Reject Technical Challenges
• Understanding IME No-Shows in New York No-Fault Insurance Cases
• A court in Nassau has applied Unitrin through a front door and back door channel
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 post, New York’s no-fault regulations and IME notification procedures may have been subject to regulatory amendments or judicial clarifications regarding mailing presumptions and acceptable proof of non-receipt. Practitioners should verify current provisions under 11 NYCRR Part 65 and recent appellate decisions when challenging IME scheduling notice defenses.