Key Takeaway
Alleviation v Hertz denied both sides summary judgment: deficient no-show proof did not establish the provider's separate entitlement to payment.
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.
Neither side obtained summary judgment in Alleviation Medical Services v Hertz (March 23, 2016). The insurer’s doctor and chiropractor did not establish the assignor’s nonattendance through personal knowledge or other appropriate means. The provider’s own proof was also insufficient.
Historical note: Alleviation rejected the particular IME proof; GC Chiropractic (2025), covered in the 2026 EUO note, separately rejected a time-lapse objection on renewal.
Last reviewed: September 2026.
Jason Tenenbaum’s original note (2016)
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”
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Read both halves of the disposition
The court removed the insurer’s summary judgment win. It left intact the denial of the provider’s motion because the provider had not established either an untimely denial or a timely denial that was legally deficient. Failure of one side’s proof did not supply the other side’s missing proof.
The opinion does not require a doctor to wait personally inside an examination room. It requires a demonstrated basis for the claimed nonappearance. The court cited personal knowledge and other appropriate means; it did not approve a catalogue of surveillance, transcripts or substitute witnesses.
A later, separate EUO case, GC Chiropractic (2025), rejected a facial credibility objection based on an affirmation signed about three years after the alleged no-shows. That ruling was on renewal, with mailing and denial issues already established. The 2026 archive note covers that time-lapse issue; it does not dispense with an evidentiary foundation in an IME case.
Connect to the Encyclopedia
Start with the IME no-show case directory, then compare:
- Priority Medical: office-practice affidavits accepted
- Acupuncture Solutions: mailing proof and the bill-timing question
- Vincent Medical: mailing, nonattendance and denial proof
- Bay LS: a name discrepancy left notice for trial
- GC Chiropractic: the separate EUO time-lapse decision
For review of a particular IME dispute, contact the office with the scheduling letters, mailing proof and relevant claim 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.
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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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