Key Takeaway
Delta Diagnostic v Auto One: both sides were denied summary judgment. Sworn examiner statements did not demonstrate knowledge of the IME no-shows.
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.
Last reviewed: September 2026.
Historical note: Delta Diagnostic (2015) left both sides without summary judgment; Jason’s comment about earlier counsel losses is not a court finding about a firm’s practices.
Neither side obtained summary judgment in Delta Diagnostic Radiology v Auto One. On July 7, 2015, the Appellate Term, Second Department denied the insurer’s motion too. The provider’s cross motion remained denied.
What the opinion says about the affidavits
The acupuncturist and doctor scheduled to conduct the IMEs supplied sworn statements without demonstrating personal knowledge of the assignor’s nonattendance. That defeated Auto One’s motion. Delta’s own proof failed to establish that the denial was untimely or legally insufficient, so the provider did not win payment by pointing out the insurer’s deficiency.
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The opinion does not identify a law firm’s internal practices or find deliberate misconduct. It also does not reproduce the affidavits or establish that the witnesses relied on hearsay. Jason’s original remark about counsel’s earlier losses is preserved as his 2015 observation, not expanded into a finding about professional competence. T & J and Compas, linked below, show how the same proof problem arose in other motion records.
Jason’s original note
Jason’s original 2015 comment follows. The opinion does not itself establish the cross-case law-firm comparison or find a pattern of misconduct.
Here is some trivia. The same firm that lost Bright Medical, Alrof and Quality Medical lost this one. I call this the Alrof curse…
Connect to the Encyclopedia
Start with the IME no-show case directory, then compare these related records:
- T & J: sworn statements without demonstrated personal knowledge
- Three 2015 decisions on inadequate IME and EUO proof
- Compas: separate IME and fee-schedule proof problems
- MB Advanced: conflicting affidavits about the examination location
- Utica: the unexplained basis of a two-year recollection
For review of a particular claim, our no-fault defense practice can assess the notices, denials and motion papers. Contact the office to discuss the file. For broader background, see New York no-fault insurance law.
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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