Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co., 2015 NY Slip Op 51522(U)(App. Term 1st Dept. 2015)
The Court limited the issue to following: “Contrary to Civil Court’s determination, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturist and defendant’s third-party IME scheduler setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME”
Many have been down this road with Judge Capella (the judge who was reversed). The no-show must either be based upon personal knowledge or by other appropriate means. that is from Compas v. Travelers and is quite asute. And, practice and procedure where there is indicia that someone was there to record the no-show will suffice is “appropriate means”.
