Key Takeaway
First Department rules on IME no-show requirements in Priority Med v NY Central Mut, requiring competent evidence beyond standard practices for no-fault claims.
Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co., 2015 NY Slip Op 50538(U)(App. Term 1st Dept. 2015)
“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim 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 ). The affidavit of defendant’s third-party IME scheduler, who had personal knowledge of his office’s standard mailing practices and procedures, sufficiently established the mailing of the IME notices (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 ). Defendant also submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and acupuncturist, as well as the IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”
I am seeing a trend where certain judges are requiring proof well in excess of the bolded passages to prove the fact of the no-show. It also appears that these IME no show appeals on this particular issue are coming from Bronx. If you want to see the absolute bear minimum necessary to prove a “no-show”, then check out the affidavit in Solorzano
