Key Takeaway
Hertz loses motion due to defective affidavits lacking personal knowledge of IME no-shows, highlighting critical evidentiary requirements in no-fault cases.
Affidavit Deficiencies Continue to Plague Hertz’s Motion Practice
Independent Medical Examinations (IMEs) are a cornerstone of New York No-Fault Insurance Law, allowing insurance companies to verify the medical necessity of treatments and the extent of injuries claimed by accident victims. However, when insurers seek to deny claims based on an insured’s failure to appear for scheduled IMEs, they must present legally sufficient evidence to support their position.
The case of Alleviation Med. Servs., P.C. v Hertz Co. demonstrates a recurring problem in no-fault litigation: insurance companies submitting defective affidavits that fail to meet basic evidentiary standards. This decision follows a pattern of cases where IME no-shows have been improperly substantiated, leading to the denial of summary judgment motions.
Understanding the requirements for proving IME non-appearance is crucial for both healthcare providers seeking payment and insurance companies defending against no-fault claims. The court’s analysis reveals the strict standards that must be met when asserting that an examination was missed.
Jason Tenenbaum’s Analysis:
Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50399(U)(App. Term 2d Dept. 2016)
Yesterday, we read about the partner who could not assert personal knowledge of the EUO no show in their affidavit. Today, we read about the healthcare practitioner whose affidavit was unpersuasive.
“Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of its claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the orthopedic IMEs and an affidavit from the chiropractor who was to perform the chiropractic and acupuncture IMEs. The doctor and the chiropractor each 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 the IMEs”
Key Takeaway
Insurance companies cannot rely on bare assertions when claiming IME non-appearance. Healthcare practitioners and doctors must demonstrate either personal knowledge of the no-show or provide evidence through other legally acceptable means. This case reinforces that properly substantiated no-shows require more than conclusory statements in affidavits or affirmations.
