Key Takeaway
Acupuncture Pain Management v Kemper: personal knowledge, office practices and proof of missed IMEs, with a separate Compas EUO comparison.
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.
The affidavits were sufficient in Acupuncture Pain Management v Kemper. On October 20, 2015, the Appellate Term, First Department reversed the denial of the insurer’s motion and granted summary judgment. The examining acupuncturist and IME scheduler supplied facts establishing personal knowledge of the missed appointments and the relevant office practices.
Historical note: The 2015 IME ruling concerns the affiants’ demonstrated knowledge; GC Chiropractic (2025), discussed in the 2026 EUO note, separately rejected a time-lapse objection on renewal.
Last reviewed: September 2026.
Two decisions with different proof
The Acupuncture court also found timely, proper notice mailing and no triable opposition concerning nonattendance, mailing or reasonableness. Its coverage analysis relied on Unitrin and related First Department authority; the result did not turn on timely denials alone.
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Jason’s reference to Compas Medical v Travelers concerns a separate EUO decision issued six days later by the Appellate Term, Second Department. There, the attorney’s statement did not establish both failures to appear through personal knowledge or another appropriate means. The insurer’s summary judgment motion was denied. Compas is the comparison in Jason’s comment, not a case cited by the earlier Acupuncture opinion.
A later EUO comparison
GC Chiropractic (2025) rejected a trial court’s conclusion that an attorney’s EUO affirmation was facially unworthy of belief because it was executed roughly three years after the appointments. The appeal was decided on renewal, with mailing and denial issues already established. The archive’s corresponding discussion is the 2026 GC Chiropractic note. It does not make every affirmation sufficient or eliminate the need to explain how the witness knows the facts.
Jason Tenenbaum’s original note (2015)
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”.
Connect to the Encyclopedia
Start with the IME no-show topic hub.
- By MD: mailing proof and the presumption of receipt
- Maya companion cases: insufficient mailing proof
- Beckles: the NF-3 and duly noticed examinations
- Valdan: reply evidence and the address known at mailing
- GC Chiropractic: the later EUO time-lapse decision
For review of a particular notice, claim file or motion, contact the Law Office of Jason Tenenbaum.
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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