Key Takeaway
Court distinguishes Alrof-Safeco case, finding competent evidence of IME no-show through physician affirmation and scheduler affidavit with personal knowledge of office practices.
Understanding IME No-Show Evidence: When Personal Knowledge Makes the Difference
In New York no-fault insurance litigation, proving that an injured person failed to appear for an Independent Medical Examination (IME) requires more than just routine paperwork. The evidence must demonstrate personal knowledge of office practices and procedures. A recent Appellate Term decision highlights the critical distinction between cases where such personal knowledge exists and where it doesn’t.
The Harmonic Physical Therapy case provides important guidance for both insurance carriers and medical providers navigating New York No-Fault Insurance Law. The court’s analysis demonstrates that not all affidavits regarding IME no-shows are created equal — the key factor is whether the affiant has actual personal knowledge of the scheduling practices involved.
This decision also sheds light on the ongoing debate around the Alrof precedent, which has been cited repeatedly in various contexts, often with mixed results for parties seeking to establish procedural compliance in no-fault disputes.
Jason Tenenbaum’s Analysis:
Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 2015 NY Slip Op 50733(U)(App. Term 1st Dept. 2015)
“Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130, 2013 NY Slip Op 50458 ), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146, 2012 NY Slip Op 51628 ; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 ).”
So Quality v Interboro is controlling? Very interesting.
Key Takeaway
The Appellate Term distinguished Alrof by emphasizing that competent evidence of IME non-appearance requires affidavits from individuals with personal knowledge of office practices and procedures. This ruling reinforces that establishing no-show cases requires more than boilerplate affidavits — the evidence must demonstrate actual familiarity with scheduling protocols and attendance verification procedures.
