No-show troubles

In New York’s no-fault insurance system, insurance companies frequently deny claims based on an injured party’s alleged failure to appear for Independent Medical Examinations (IMEs). However, courts have consistently held that insurance companies cannot rely on conclusory statements to establish non-appearance. Instead, they must submit affidavits from individuals with personal knowledge of the scheduled appointment who can attest that the claimant actually failed to appear.

The personal knowledge requirement stems from fundamental evidence law principles. An affidavit or affirmation stating merely that someone “failed to appear” without explaining how the affiant knows this information lacks probative value. The landmark case Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, established that medical professionals or other witnesses must demonstrate they were present at the scheduled appointment time and personally observed the non-appearance. This evidentiary standard prevents insurance companies from submitting form affidavits prepared by attorneys or claims adjusters who have no firsthand knowledge of what actually occurred.

Three Second Department Appellate Term decisions from 2015 illustrate common evidentiary failures that plague insurance company defenses in IME no-show cases. These rulings demonstrate that even when insurers properly schedule examinations and send appropriate notices, they can lose summary judgment motions if their proof of non-appearance fails to meet established evidentiary standards.

Case Background

The trilogy of cases decided by the Second Department Appellate Term involved separate no-fault insurance disputes where healthcare providers sued to recover payment for medical services rendered to accident victims. In each case, the insurance company moved for summary judgment to dismiss the complaint, arguing that the injured party (the provider’s assignor) had failed to appear for scheduled IMEs, thereby precluding recovery under New York’s no-fault insurance regulations.

The insurance companies submitted affidavits from various professionals involved in the IME process—physicians, psychologists, and other medical examiners—attesting to the assignors’ non-appearance. On their face, these affidavits appeared to establish the defense. However, the Appellate Term scrutinized whether these witnesses had demonstrated personal knowledge of the non-appearances or merely recited conclusions without adequate factual foundations.

Jason Tenenbaum’s Analysis

Compas Med., P.C. v Geico Ins. Co., 2015 NY Slip Op 51590(U)(App. Term 2d Dept. 2015)

” In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted affidavits and an affirmation from the medical professionals who were to perform the IMEs which stated in a conclusory manner that plaintiff’s assignor had failed to appear at the duly scheduled IMEs. These affidavits and affirmation were insufficient to establish defendant’s entitlement to summary judgment”

Alleviation Med. Servs., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51591(U)(App. Term 2d Dept. 2015)

“The doctor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146, 2012 NY Slip Op 51628 ), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint”

Village Med. Supply, Inc. v Travco Ins. Co., 2015 NY Slip Op 51599(U)(App. Term 2d Dept. 2015)

“However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question”

Legal Significance

These decisions reinforce a critical principle in New York no-fault litigation: the burden of proof on insurance companies defending IME no-show claims extends beyond demonstrating proper scheduling and notice. The insurer must also establish, through competent evidence, that the non-appearance actually occurred. This requirement serves important policy goals by preventing fraudulent denials and ensuring that claim denials rest on reliable factual foundations rather than self-serving statements.

The Fogel standard requires that affidavits contain sufficient detail about the affiant’s role and presence at the examination to allow courts to evaluate whether the witness truly has firsthand knowledge. For example, a physician’s affidavit should explain that the doctor or their staff was present at the scheduled time, waited for the claimant, and observed that the person never arrived. Generic statements like “the assignor failed to appear” without such contextual details fail to satisfy this standard.

Courts have recognized alternative methods of establishing non-appearance when personal knowledge testimony is unavailable, such as business records showing appointment scheduling systems and attendance logs maintained in the ordinary course of business. However, even these alternatives require proper foundation testimony from custodians or other qualified witnesses who can authenticate the records and explain the record-keeping practices.

Practical Implications

For insurance companies and their counsel, these decisions underscore the importance of careful evidence preparation when asserting IME or EUO non-appearance defenses. Defense attorneys should:

• Ensure that examining physicians or their office staff provide detailed affidavits explaining their personal observations of non-appearance
• Avoid generic or conclusory statements that merely recite legal conclusions
• Consider alternative proof methods, such as business records with proper foundation testimony, when personal knowledge affidavits are unavailable
• Recognize that multiple deficient affidavits do not cure the evidentiary deficit—quality matters more than quantity

For healthcare providers and plaintiff’s counsel, these rulings provide a roadmap for challenging insurance company summary judgment motions based on alleged IME no-shows. Close scrutiny of the insurer’s affidavits often reveals conclusory statements lacking adequate factual foundations, creating viable grounds for defeating summary judgment.

Key Takeaway

The trilogy of 2015 decisions demonstrates that New York courts strictly enforce personal knowledge requirements in IME no-show cases. Insurance companies cannot secure summary judgment based on conclusory affidavits that fail to establish how the affiant knows the claimant did not appear. Whether challenging or defending against IME non-appearance claims, practitioners must focus on the quality and detail of evidentiary submissions, ensuring that all factual assertions rest on proper foundations rather than mere legal conclusions.

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