Key Takeaway
New York Appellate Term ruling clarifies what evidence insurers need to prove patient no-shows at IMEs, emphasizing physician affidavits over office records.
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.
Independent Medical Examinations (IMEs) are a cornerstone of New York No-Fault Insurance Law, allowing insurers to verify the medical necessity of claimed treatments. When patients fail to appear for scheduled IMEs, insurers often seek to deny claims entirely. However, proving a “no-show” requires more than just documentation — it demands competent evidence that can withstand judicial scrutiny.
The Appellate Term’s decision in S.A. Med., P.C. v Praetorian Ins. Co. provides crucial guidance on what constitutes sufficient proof of non-appearance. This ruling clarifies the evidentiary standards that have evolved since earlier decisions like those discussed in our analysis of substantiated no-shows and cases where IME notices weren’t properly mailed.
Jason Tenenbaum’s Analysis:
S.A. Med., P.C. v Praetorian Ins. Co**.**, 48 Misc 3d 128(A)(App. Term 2d Dept. 2015)
“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ 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 ). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146, 2015 NY Slip Op 50733 ).”
Legal Significance
The S.A. Medical decision clarifies critical evidentiary standards for proving IME no-shows, rejecting reliance on mere office records or administrative documentation. The Appellate Term explicitly stated that the Civil Court erred in concluding defendant lacked competent evidence of non-appearance. The key to sufficiency was the sworn affidavits from the examining physician and chiropractor/acupuncturist, each attesting to personal knowledge of their office practices and procedures when patients fail to appear.
This personal knowledge requirement distinguishes competent evidence from hearsay or speculation. The examining professionals didn’t merely state that plaintiff’s assignor failed to appear—they explained their offices’ established protocols for documenting no-shows and confirmed that following those protocols revealed non-appearance in this case. This connection between standard procedures and specific application to the case at issue satisfied evidentiary requirements.
The decision builds on American Trust Insurance Co. v Lucas and related precedent establishing that IME no-show proof requires more than clerical affidavits. While office staff might maintain appointment calendars or generate computerized records, examining physicians possess superior knowledge of examination procedures and can testify with greater authority about whether examinations occurred. Their professional involvement in the IME process gives their testimony enhanced credibility and probative value.
Significantly, the court rejected arguments that underlying office records must be produced alongside physician affidavits. The affidavits themselves, when properly sworn and demonstrating personal knowledge of office practices, constitute competent evidence without requiring attachment of appointment books, sign-in sheets, or other documentary support. This principle streamlines IME no-show proof and prevents unnecessary evidentiary disputes over administrative record-keeping.
Practical Implications
For insurance carriers seeking to establish IME no-shows, S.A. Medical provides a clear roadmap. Carriers must obtain sworn affidavits from the examining physicians or other medical professionals who would have conducted the IMEs. These affidavits should describe the office’s standard procedures for scheduling examinations, confirming appointments, documenting attendance, and recording no-shows. The affidavits must then explain how following those procedures demonstrated non-appearance in the specific case.
Generic affidavits stating only that “the patient failed to appear” without explaining office procedures or the affiant’s personal knowledge will likely prove insufficient. Instead, affidavits should detail how the affiant knows about office practices (through personal involvement in establishing them, daily participation in examination procedures, or review of office protocols), describe what those practices entail, and connect the practices to the conclusion that non-appearance occurred.
For plaintiff providers challenging IME no-show defenses, the decision confirms that attacking physician affidavits requires more than asserting they’re self-serving or conclusory. Providers must submit contrary evidence suggesting appearance occurred—such as patient affidavits claiming attendance, travel receipts or GPS data showing presence at the examination location, or evidence that the insurer failed to properly schedule or confirm the appointment.
The decision also affects discovery strategy. Providers may seek to depose examining physicians to challenge their personal knowledge of office procedures or probe whether stated protocols were actually followed. However, the existence of sworn affidavits attesting to personal knowledge creates substantial obstacles to defeating prima facie showings through discovery challenges alone.
Key Takeaway
The Appellate Term emphasized that sworn physician affidavits demonstrating personal knowledge of office practices constitute competent evidence of patient non-appearance at IMEs. This ruling reinforces that insurers cannot rely solely on administrative records but must present testimony from medical professionals with direct knowledge of their examination procedures and no-show protocols. The affidavits must connect standard office procedures to specific findings of non-appearance in the case at issue, but need not attach underlying documentary records when the affiant properly attests to personal knowledge and established practices.
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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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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.
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