Key Takeaway
Court rejects appeal argument raised for first time, emphasizing that appeals aren't opportunities to introduce new claims after initial proceedings conclude.
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.
In New York’s no-fault insurance system, healthcare providers must navigate complex procedural requirements when seeking reimbursement for medical services. One critical aspect involves compliance with independent medical examination (IME) requests from insurance companies. When providers or their assignors fail to appear for scheduled IMEs, insurers can deny payment for related medical bills.
The appellate process in no-fault cases follows strict procedural rules. Courts require parties to raise all relevant arguments during the initial proceedings. This principle prevents litigants from strategically withholding defenses or claims, then introducing them later if the initial case doesn’t go favorably. The rule ensures judicial efficiency and fairness to all parties involved.
This case demonstrates a common mistake in no-fault litigation: attempting to raise new arguments on appeal that weren’t presented to the lower court. Whether the issue involves IME scheduling procedures or substantiating no-show claims, parties must present their complete case from the beginning.
Jason Tenenbaum’s Analysis:
Mind & Body Acupuncture, P.C. v Elrac, Inc., 2015 NY Slip Op 51219(U)(App. Term 2d Dept. 2015)
“With respect to the bills that were denied based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), the only other argument plaintiff makes on appeal is that the address to which the IME scheduling letters were addressed improperly included an apartment number. However, that argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it”
Legal Significance
The appellate preservation doctrine serves critical functions in New York’s judicial system. By requiring parties to raise arguments at the trial level, courts ensure that lower court judges have the opportunity to consider and rule on all relevant issues. This prevents strategic gamesmanship where litigants might hold back defenses, waiting to see if they prevail before deciding whether to raise additional arguments.
The doctrine also promotes judicial efficiency. Appellate courts review lower court decisions for legal errors, not to conduct independent fact-finding or evaluate arguments that the trial court never had the opportunity to consider. When new arguments appear for the first time on appeal, the appellate court lacks a lower court record addressing those issues, making meaningful appellate review impossible.
In no-fault cases specifically, this preservation requirement takes on heightened importance given the volume of litigation and the standardized nature of many defenses. Issues such as improper addressing on IME notices, defective scheduling letters, or procedural irregularities in verification requests must be raised promptly, not held in reserve for potential appellate review.
Practical Implications
This decision underscores the necessity of comprehensive motion practice at the trial court level. When defending against no-fault claims, insurance companies must review all aspects of procedural compliance with IME requests, including proper addressing, reasonable scheduling, and adequate notice to all necessary parties. Any identified defects should be raised in the initial motion for summary judgment or in opposition to plaintiff’s motion.
For healthcare providers and their attorneys, the lesson is equally important. When contesting IME-based denials, providers must raise all potential arguments regarding defective notice in their initial papers. Claims that IME letters included improper apartment numbers, were sent to wrong addresses, lacked required information, or violated regulatory requirements cannot be saved for appeal if the argument would have been available at the trial court level.
Key Takeaway
Appeals courts will not consider arguments raised for the first time on appeal, regardless of their potential merit. Healthcare providers must present all defenses regarding IME compliance issues during initial proceedings. This case reinforces that proper appellate strategy requires thorough preparation at the trial court level, not hoping for a second chance on appeal.
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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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Jan 29, 2010Common Questions
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.
If you need legal help with a ime issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
