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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.
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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 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.
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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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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.
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