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.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Understanding IME No-Show Evidence Standards in New York No-Fault Cases
The proof requirements for establishing patient non-appearance at Independent Medical Examinations continue to generate significant appellate litigation in New York’s no-fault insurance system. While insurance companies possess the right to schedule IMEs as part of their claim investigation process, this right comes with strict evidentiary obligations when carriers seek to deny claims based on patient no-shows.
New York appellate courts have developed a framework for what constitutes adequate proof of non-appearance. This framework balances the legitimate needs of insurers to investigate potentially fraudulent or unnecessary claims against the risk that healthcare providers will be denied payment based on insufficient or unreliable evidence. The standards vary somewhat between judicial departments, creating challenges for practitioners who handle cases across multiple venues.
The First Department has established a relatively clear set of requirements through cases like Priority Medical Diagnostics v New York Central Mutual Fire Insurance Co. These requirements specify both procedural elements (proper mailing of IME notices) and substantive proof (competent evidence of actual non-appearance). Understanding both components is essential for insurance defense attorneys and medical providers’ counsel.
Case Background
Priority Medical Diagnostics provided diagnostic services to an automobile accident victim and submitted claims to New York Central Mutual Fire Insurance Company seeking no-fault benefits. The insurance company scheduled the patient for Independent Medical Examinations with both a chiropractor and an acupuncturist. When the patient allegedly failed to appear at either examination, New York Central denied the related claims.
Priority Medical filed suit in Civil Court seeking payment. New York Central moved for summary judgment, submitting affidavits from its third-party IME scheduler and from the two examining practitioners. These affidavits attested to proper mailing of examination notices and the patient’s repeated failures to appear.
Jason Tenenbaum’s Analysis:
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
Legal Significance and Evolving Standards
The Priority Medical decision establishes a multi-layered evidentiary framework for IME no-show cases. Insurance companies must first demonstrate proper mailing through affidavits from personnel with personal knowledge of office mailing procedures. These affidavits must detail the standard practices followed, not merely assert that mailings occurred. The specificity requirement prevents carriers from relying on conclusory statements that lack factual foundation.
Beyond proving proper notice, insurers must establish actual non-appearance through competent evidence. The court’s emphasis on “sworn affidavits” from examining practitioners “setting forth sufficient facts to demonstrate the affiants’ personal knowledge” reflects heightened scrutiny of boilerplate submissions. Examining doctors must explain not only that patients failed to appear, but also describe the office practices and policies triggered when non-appearances occur.
The geographic pattern Jason Tenenbaum identifies—heightened proof requirements emerging from Bronx appeals—suggests local trial courts may be responding to perceived abuses in IME scheduling or documentation practices. Some providers have challenged whether scheduled IMEs actually occurred or whether examining physicians were actually available at the designated times. These challenges prompt courts to demand more detailed affidavits establishing the full factual predicate for no-show denials.
Practical Implications for No-Fault Litigation
Insurance defense counsel must prepare comprehensive affidavit packages addressing all elements the courts require. This includes detailed mailing affidavits from personnel who actually prepared and sent IME notices, not merely supervisors attesting to general office procedures. The affidavits should specify the date of mailing, the address used, and the exact procedures followed to ensure proper delivery.
Examining physician affidavits must transcend bare assertions of non-appearance. Practitioners should describe their personal involvement in the scheduled examination date, what procedures their offices follow when patients arrive (or don’t arrive), and how their staff documents no-shows in real time. References to appointment logs, contemporaneous notes, and systematic office protocols strengthen these affidavits substantially.
Medical providers challenging IME no-show denials should scrutinize affidavits for specificity gaps. Generic statements about standard procedures without personal knowledge assertions create factual disputes precluding summary judgment. Providers can also demand discovery targeting the IME facility’s actual practices, seeking to demonstrate gaps between claimed procedures and actual operations.
The evolving standards also counsel insurance companies to invest in robust IME scheduling and documentation systems. Third-party IME scheduling services must maintain detailed records capable of supporting litigation years later. Examining physicians should document non-appearances contemporaneously rather than relying on after-the-fact reconstructions.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Sep 16, 2016Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a ime issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
