Insufficient proof that the IME letters were not received

By MD v NY Central Mutual turned on proof of mailing and receipt. The Appellate Term held that a vendor employee’s affidavit established timely mailing of IME notices and that the provider’s affidavit did not rebut the presumption of receipt. The insurer obtained dismissal on July 28, 2014.

Historical note: By MD (2014) addresses the sufficiency of particular affidavits; a present no-show motion still requires examination of the notice, attendance and opposition evidence under the governing authority.

Last reviewed: September 2026.

What the affidavits established

The opinion identifies separate evidence for the scheduling letters, the missed appointments and the denial forms. The vendor employee described the office’s mailing practice. The examining healthcare professional established nonattendance. A claims examiner described how the denials were mailed.

The court did not hold that any denial of receipt is worthless. Nor did it find that the provider fabricated its opposition. The opinion does not reproduce the opposing affidavit; its reasoning concerns the sufficiency of the evidence presented.

Compare the proof, not just the result

In the 2016 Maya companion cases, the insurer’s affidavit failed to describe a practice sufficient to establish proper addressing and mailing. That is a different starting point from an established presumption that the opponent has not rebutted.

Valdan’s reply-evidence decision adds another question: which address was known when the notices went out? Read the notice dates and the supporting documents before treating a later bill as proof that an earlier notice was misaddressed.

Jason Tenenbaum’s original note (2014)

The following is archived commentary. Its observations about clinic affiliations and other cases are not findings of the By MD court and have not been independently verified for this update.

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.

Connect to the Encyclopedia

Start with the IME no-show topic hub.

• Maya companion cases: insufficient mailing proof
• Valdan: reply evidence and the address known at mailing
• Acupuncture Pain Management: proof of nonattendance
• Beckles: the NF-3 and duly noticed examinations
• Success Rehab: the post-claim IME examination date

For review of a particular notice, claim file or motion, contact the Law Office of Jason Tenenbaum.