Key Takeaway
Metro 8 v ELRAC: an unexplained recollection of IME no-shows lacked foundation. Compare the later GC Chiropractic ruling on an EUO affirmation.
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.
How did the examiner know the patient had not appeared? In Metro 8 Medical Equipment v ELRAC, the affidavit did not answer that question. The chiropractor/acupuncturist said she kept no records of IME nonappearances and did not explain her recollection 18 months later. On February 18, 2016, the Appellate Term, First Department, reversed the insurer’s summary-judgment win.
Historical note: Metro 8 concerns an unexplained basis of knowledge; GC Chiropractic (2025) later accepted an EUO affirmation on renewal despite elapsed time, a distinct issue discussed in the 2026 case note.
Last reviewed: September 2026.
Jason Tenenbaum’s original note
Jason’s original 2016 recommendation follows. The court required a demonstrated basis of knowledge; it did not announce that records review is the only possible foundation or that an early affidavit automatically cures a defect.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
The test for “basis of knowledge” requires a statement that I have reviewed my records and Assignor did not appear. Other verbiage is necessary, but a review of records is required. The providers advocate for production of these records on motion, but we are not there yet.
The better solution to avoid all of this is for the insurance carrier to require contemporaneous affidavits of no-shows. This solves the above issue.
An unexplained recollection, not an automatic time limit
Metro 8 also rejected reliance solely on the scheduling vendor’s affidavit to establish personal knowledge of nonattendance. Routinely recording the examiner’s third-party statements did not, by itself, establish their reliability.
Jason’s original recommendation favors records and prompt affidavits. The holding is narrower than a rule that every witness must review records or that a contemporaneous affidavit necessarily solves the problem. The witness still needs a supported basis of knowledge; an early signature does not supply one by itself.
For a later comparison, GC Chiropractic v State Farm concerned an attorney’s EUO affirmation executed about three years after the appointments. On renewal, the Second Department’s Appellate Term found it sufficient despite that lapse. It did not overrule Metro 8 or dispense with a foundation for knowledge.
The firm’s 2026 note on GC Chiropractic addresses that time-lapse question. For an IME file, ask what the particular witness observed or reviewed, and whether the supporting material explains the asserted nonattendance.
Connect to the Encyclopedia
Start with the IME no-show topic hub, then compare these related notes:
- Faith: insufficient office-mailing proof
- Renelique: address mismatch and attorney notice
- Apollo: proving the mandatory IME provision
- GC Chiropractic: later EUO time-lapse ruling on renewal
For review of a particular no-fault dispute, contact the firm with the appointment letters, relevant claim forms and motion papers.
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.
Keep Reading
More IME issues Analysis
Simple addition is insufficient
Jodi Jacobs's 2021 mixed appeal: four claims dismissed, one fee balance unresolved, and why the schedule alone did not prove correct code use.
May 22, 2021
NF-3 is the operative document
Unitrin Direct v Beckles: the NF-3, timely IME requests and two missed examinations. Distinguish the request deadline from the examination date.
Mar 22, 2021
IME no show reversal based upon the new 800 pound guerilla: proof of the no show
Long Island court ruling on IME no-show reversals and proof requirements in New York no-fault insurance cases, featuring Jacoby Chiropractic decision.
Dec 8, 2013
Donde esta Unitrin?
Vincent Medical accepted IME mailing, nonattendance and denial proof. Jason's Unitrin comparison concerns coverage preclusion, not address verification.
Sep 26, 2011
Mailing to the attorney
Court rules insurance company failed to provide adequate IME notice when letter to insured was sent to wrong address, despite proper notice to attorney.
May 14, 2018
Maya failed to prove mailing of the IME scheduling letters
Sharp View denied Maya's summary judgment motion for insufficient mailing proof. The ruling did not award benefits or require certified mail.
Nov 28, 2015Was this article helpful?
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.
