First Department on Unitrin again

The insurer’s evidence succeeded in Priority Medical Diagnostics (April 16, 2015). The Appellate Term, First Department reversed the denial of its motion and granted summary judgment. The decision accepted the scheduler’s knowledge of office mailing practices and the practitioners’ and scheduler’s no-show affidavits.

Historical note: Priority Medical (2015) accepted office-practice and nonattendance affidavits; Gaines (2025) likewise examined scheduling evidence and consistent IME-doctor affirmations.

Last reviewed: September 2026.

Jason Tenenbaum’s original note (2015)

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

Office practices were accepted evidence

The opinion does not restrict mailing affidavits to the person who physically posted the letters. It says the third-party scheduler knew the office’s standard mailing practices and procedures. Its separate discussion of nonattendance identifies facts supporting personal knowledge and the office’s no-show practices.

Jason’s observation about Bronx motion practice is preserved here as his 2015 commentary. The court did not find that local judges were reacting to abuse by insurers, and it did not announce a new categorical requirement for contemporaneous appointment logs.

Unitrin required compliant requests and nonattendance before the opposing parties’ failure to raise a factual issue mattered. The later Gaines decision (2025) also relied on scheduling evidence consistent with the IME doctor’s affirmations. Read each affidavit for how the witness knows the fact at issue; the witness’s job title alone does not establish or defeat that foundation.

Connect to the Encyclopedia

Start with the IME no-show case directory, then compare:

• Acupuncture Solutions: mailing proof and the bill-timing question
• Alleviation v Hertz: neither side established summary judgment
• Vincent Medical: mailing, nonattendance and denial proof
• Bay LS: a name discrepancy left notice for trial
• Parisien: no response to requests and a later objection

For review of a particular IME dispute, contact the office with the scheduling letters, mailing proof and relevant claim papers.