Key Takeaway
Hertz loses motion due to defective affidavits lacking personal knowledge of IME no-shows, highlighting critical evidentiary requirements in no-fault cases.
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.
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”
Legal Significance
The Alleviation Medical Services decision is significant because it reinforces the fundamental evidentiary principle that affidavits submitted in support of summary judgment motions must contain admissible evidence. The court’s emphasis on personal knowledge requirements serves as a critical safeguard against insurers attempting to deny claims based solely on unverified assertions. This standard applies equally to medical professionals and claims adjusters—neither can simply declare that an event occurred or did not occur without establishing a foundation for their knowledge.
The decision also highlights the dual pathways for establishing IME non-appearance: personal knowledge or “other appropriate means.” While the court cites Quality Psychological Services as an example of alternative proof methods, it doesn’t provide a comprehensive definition. This leaves practitioners to navigate case law to determine what qualifies—potentially including certified stenographic transcripts, video surveillance footage, or sworn testimony from office staff who were present at the examination location.
Practical Implications
For insurance companies defending no-fault claims based on IME non-appearance, this decision underscores the importance of establishing clear procedures for documenting examinations. The examining physician or healthcare practitioner should not be the sole witness relied upon unless they can demonstrate they were personally present when the assignor failed to appear. Instead, insurers should ensure that administrative staff, court reporters, or other witnesses with direct knowledge are prepared to provide affidavits.
Healthcare providers pursuing payment should carefully scrutinize the affidavits submitted by insurers claiming IME non-appearance. If the affiant cannot establish personal knowledge—for example, if a doctor states the patient didn’t appear but was not personally waiting in the examination room—the affidavit may be insufficient to support summary judgment. Plaintiffs should specifically challenge whether the affiant had the requisite personal knowledge or whether alternative proof methods meet established legal standards.
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.
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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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Jan 3, 2015Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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